

Book Ca,C i 

'®S.3 










MINING LAWS AND FORMS: 



/' 1 L |L Compilation of tire Statutes 



OF THE 


STATE OF CALIFORNIA, 

• 7 


Mining Corporations, Assessments, Canal Compa¬ 
nies, Mineral Lands, and Conveyances 
of Mining Claims, 


TOGETHER WITH FORMS FOR THE 


INCORPORATION OF MINING CO 



AND A DIGEST OF 


Jlmstons of % ^itpreme Court, v 


RELATIVE TO MINING CORPORATIONS AND MINING INTERESTS. 


COMPILED BY II. B. CONGDON. 


[SECOND EDITION.] 


SAN FRANCISCO: 

II . H. BANCROFT AND COMPANY. 

1 863 . 


) 

> 




C2.07 


/g63 




Entered according to Act of Congress in the year of our Lord 1863, 
By H. B. CONGDON, 

In the Clerk’s otficc of the District Court of the United States for the 
Northern District of California. 


Towne & Bacon, Printers, 536 Clay Street. 






PREFACE. 


The present volume contains all the laws and decisions 
which relate tt> Mining Corporations in the State of California; 
also the necessary forms used in the incorporation of Mining 
Companies. It is published because of the great necessity for 
such a work. Many thousands of men in California and Nevada 
Territory are directly engaged in mining, and thousands more 
are owners of mining stocks ; many millions of capital are 
invested in them and nearly the whole business of California 
and Nevada Territory is based on mining interests, yet com¬ 
paratively few persons know anything definite about the laws 
which govern these great interests. These laws are simple and 
easily understood. 

The professional man will find the present volume of great 
convenience, as all the mining laws are compiled in their proper 
order, and the decisions of the Supreme Court bearing on the 
subject are arranged under appropriate heads. The most ap¬ 
proved forms used in the fonnation of companies and a full 
and complete index are appended, and there will be no occasion 
for looking beyond the present volume for any law, decision, or 
form which relates to the subject. 

To the great number of individuals who are members of 
incorporated Mining Companies and owners of mining stock, 
as well as to those who may hereafter become interested in like 





4 


companies, this little compilation presents an opportunity of 
acquiring a perfect knowledge of the laws which govern the 
subject of their interests. 

To persons who may desire to form Mining Companies it 
gives complete instruction and will enable them to commence 
and perfect their organization without legal advice or assistance. 

H. B. C. 

San Francisco, July, 1863. 


CONTENTS. 


Page. 

An Act to provide for the formation of Corporations for cer¬ 
tain purposes.—Passed April 14th, 1853. 7 

An Act supplementary to an Act entitled “ An Act to pro¬ 
vide for the formation of Corporations for certain pur¬ 
poses, ” passed April 14th, 1853.—Passed March 27th, 

1857... 19 

An Act in reference to Corporations organized in this State 
for the purpose of Mining out of this State.—Passed 

March 5th, 1861. 22 

An Act to authorize the incorporation of Canal Companies 
and the construction of Canals.—Passed May 14th, 

1862 . 24 

An Act to protect Owners of Growing Crops, Buildings, and 
other Improvements in the Mining Districts of this 

State.—Passed April 25th, 1855. 26 

An Act to provide for the Conveyance of Mining Claims.— 

Passed April 13th, 1860. 28 

DECISIONS OF SUPREME COURT— 

Certificate of Incorporation. 31 

Assignment and Transfer of Stock. 32 

Powers and Liabilities of Corporations. 34 

Right of surviving Partner. 39 

Actions. 40 

Agricultural and Mineral Lands. 45 

Rights of Miners, etc. 53 

Ditches, Canals, River Claims, etc. 59 

Mining Rules, Customs, etc. 63 

Conveyance. 71 

Taxation. 72 




















6 

* 

Pflfte. 

APPENDIX. (Forms.)— 

Certificate of Incorporation. 77 

Trust Deed. 79 

By-Laws. 81 

Power of Attorney to receive Certificates of Stock... 8C 

Power of Attorney to vote at Meetings of Stockhold¬ 
ers. 86 

Index to Statutes. 87 

Index to Decisions. 91 








THE 


MINING CORPORATION LAW 

OF THE STATE OF CALIFORNIA. 


AX ACT to provide for the formation of Corporations 

for certain Purposes. 

[Passed April 14th, 1853—Wood’s Dig. pp. 119, 906; Statutes 1853, 
p. 87 ; Statutes 1855, p. 205.] 

1. Section 1 . (As amended by Act of April 10th, 
1858—Stat. 1858, p. 133.) Corporations for manufactur¬ 
ing, mining, mechanical, wharfing and dockage, chemical 
or agricultural purposes, or for the purpose of engaging 
in any species of trade or commerce, foreign or domestic, 
may be formed according to the provisions of this act; 
such corporations and members thereof being subject to 
all the conditions and liabilities herein imposed, and to 
none others; provided, that nothing in this section shall 
be so construed as to authorize a company formed un¬ 
der it to own or hold possession of more than fourteen 
hundred and forty acres of land, or to authorize an in¬ 
dividual member of such company or association, in his 
corporate capacity, to hold, own or possess a number of 
acres to exceed eighty ; and provided further, that no 
corporation formed under the provisions of the said 



8 


Act of April 14th, 1853, except those formed for agri¬ 
cultural purposes, shall own or hold possession of more 
real estate than shall he actually necessary for the 
prosecution of the business for which it was incorpo¬ 
rated; and 'provided further , that no corporations, 
formed for agricultural purposes, shall be allowed to 
hold any mineral lands under the provisions of this act; 
provided , that no contract valid in law, or right sacred 
in equity, shall be impaired by the retroactive force of 
the section; provided , that nothing in this section shall 
be so construed as to authorize a company formed under 
it to own or hold possession of more than fourteen hun¬ 
dred and forty acres of land. 

2. Sec. 2. (As amended by Act of March 7 th, 1859— 
Stat. 1859, p. 93.) Any three or more persons who may 
desire to form a company for any one or more of the 
purposes specified in the preceding section, may make, 
sign, and acknowledge, before some officer competent to 
take the acknowledgment of deeds, and file in the office 
of the County Clerk of the county in which the princi¬ 
pal place of business of the company is intended to be 
located, and a certified copy thereof, under the hand of 
the Clerk and seal of the County Court of said county, 
in the office of the Secretary of State, a certificate in 
writing, in which shall be stated the corporate name of 
the company, the objects for which the company shall 
be formed, the amount of its capital stock, the time of 
its existence, not to exceed fifty years, the number of 
shares of which the stock shall consist, the number of 
trustees and their names, who shall manage the con¬ 
cerns of the company for the first three months, and 
the names of the city, or town, and county, in which the 
principal place of business of the company is to be lo¬ 
cated. 


9 


3. Sec. 3. A copy of any certificate of incorpora¬ 
tion, filed in pursuance of this act, and certified by the 
County Clerk of the county in which it is filed, or his 
deputy, or by the Secretary of State, shall be received 
in all Courts and places as presumptive evidence of the 
facts therein stated. 

4. Sec. 4. When the certificate shall have been 
filed, the persons who shall have signed and acknowl¬ 
edged the same, and their successors, shall be a body 
politic and corporate, in fact and in name, by the name 
stated in the certificate, and by their corporate name 
have succession for the period limited and power: 
First, to sue and be sued in any Court; Second, to 
make and use a common seal, and alter the same at 
pleasure; Third, to purchase, hold, sell, and convey 
such real and personal estate as the purposes of the 
corporation shall require; Fourth, to appoint such of¬ 
ficers, agents, and servants, as the business of the cor¬ 
poration shall require; to define their powers, prescribe 
their duties, and fix their compensation; Fifth, to re¬ 
quire of them such security as may be thought proper 
for the fulfillment of their duties, and to remove them 
at will; except that no trustee shall be removed from 
office unless by a vote of two-thirds of the whole num¬ 
ber of trustees, or by a vote of a majority of the trus¬ 
tees, upon a written request signed by stockholders of 
two-thirds of the whole stock; Sixth, to make by-laws 
not inconsistent with the laws of this State for the 
organization of the company, the management of its 
property, the regulation of its affairs, the transfer of its 
stock, and for carrying on all kinds of business within 
the objects and purposes of the company. 

5. Sec. 5. The corporate powers of the corporation 
shall be exercised by a Board of not less than three 

1 * 


10 


trustees, who shall be stockholders in the company, and 
a majority of them citizens of the United States, and 
residents of this State, and who shall, after the expira¬ 
tion of the term of the trustees first selected, be annu¬ 
ally elected by the stockholders at such time and place, 
and upon such notice and in such mode as shall be di¬ 
rected by the by-laws of the company; but all elections 
shall be by ballot, and each stockholder, either in per¬ 
son or by proxy, shall be entitled to as many votes as 
he owns shares of stock; and the persons receiving the 
greatest number of votes shall be trustees. hen any 
vacancy shall happen among the trustees by death, re¬ 
signation or otherwise, it shall be filled for the remain- 
der of the year in such manner as may be provided by 
the by-laws of the company. 

6. Sec. 6. If it should happen, at any time, that an 
election of trustees shall not be made on the day desig¬ 
nated by the by-laws of the company, the corporation 
shall not for that reason be dissolved, but it shall be 
lawful on any other day to hold an election for trustees, 
in such manner as shall be provided for by the by-laws 
of the company; and all acts of trustees shall be valid 
and binding upon the company until their successors 
shall be elected. 

7. Sec. 7. A majority of the whole number of trus¬ 
tees shall form a Board for the transaction of business, 
and every decision of a majority of the persons duly 
assembled as a Board, shall be valid as a corporate act. 

8. Sec. 8. The first meeting of the trustees shall 
be called by a notice, signed by one or more of the per¬ 
sons named trustees in the certificate, setting forth the 
time and place of the meeting, which notice shall be 
either delivered personally to each trustee, or published 
at least ten days in some newspaper of the county in 


11 


which is the principal place of business of the corpora¬ 
tion, or if no newspaper be published in the county, 
then in some newspaper nearest thereto. 

9. Sec. 9. The stock of the company shall be 
deemed personal estate, and shall be transferable in 
such manner as shall be prescribed by the by-laws of 
the company; but no transfer shall be valid, except be¬ 
tween the parties thereto, until the same shall have been 
so entered on the books of the company, as to show 
the names of the parties by and to whom transferred, 
the number and designation of the shares, and the date 
of the transfer. 

10. Sec. 10. The trustees shall have power to call 
in and demand from the stockholders the sums by them 
subscribed, at such times and in such payments or in¬ 
stallments as they may deem proper. Notice of each 
assessment shall be given to the stockholders personally, 
or shall be published once a week for at least four 
weeks in some newspaper published at the place desig¬ 
nated as the principal place of business of the corpora¬ 
tion, or if none is published there, in some newspaper 
nearest to such place. If, after such notice has been 
given, any stockholder shall make default in the pay¬ 
ment of the assessment upon the shares held by him, so 
many of such shares may be sold as will be necessary 
for the payment of the assessment on all the shares 
held by him. The sale of said shares shall be made as 
prescribed in the by-laws of the company; -provided , 
that no sale shall be made except at public auction, to 
the highest bidder, after a notice of thirty days, pub¬ 
lished as above directed in this section ; and that at such 
sale the person who will agree to pay the assessment so 
due, together with the expense of advertisement and 
the other expenses of sale, for the smallest number of 
whole shares, shall be deemed the highest bidder. 


12 


11. Sec. 11. Whenever any stock is held by any 
person as executor, administrator, guardian, or trustee, 
he shall represent such stock at all meetings of the 
company, and may vote accordingly as a stockholder. 

12. Sec. 12. Any stockholder may pledge his stock 
by a delivery of the certificates or other evidence of his 
interest, but may nevertheless represent the same at all 
meetings, and vote accordingly as a stockholder. 

13. Sec. 13. It shall not be lawful for the trustees 
to make any dividend except from the surplus profits 
arising from the business of the corporation; nor to 
divide, withdraw, or in any way pay to the stockholders, 
or any of them, any part of the capital stock of the 
company; nor to reduce the capital stock, unless in the 
manner prescribed in this act; and in case of any viola¬ 
tion of the provisions of this section, the trustees, under 
whose administration the same may have happened, ex¬ 
cept those who may have caused their dissent therefrom 
to be entered at large on the minutes of the board of 
trustees at the time, or were not present when the same 
did happen, shall, in their individual and private capa¬ 
cities, be jointly and severally liable to the corporation, 
and the creditors thereof, in the event of its dissolution, 
to the full amount so divided, withdrawn, paid out, or 
reduced; provided , that this section shall not be con¬ 
strued to prevent a division and distribution of the capital 
stock of the company, which shall remain after the pay¬ 
ment of all its debts, upon the dissolution of the corpora¬ 
tion or the expiration of its charter. 

14. Sec. 14. The total amount of the debts of the 
corporation shall not at any time exceed the amount of 
the capital stock actually paid in; and in case of any 
excess, the trustees, under whose administration the same 
may have happened, except those who may have caused 


i 


13 


their dissent therefrom to be entered at large on the 
minutes of the board of trustees at the time, and except 
those who were not present when the same did happen, 
shall, in their individual and private capacities, be liable 
jointly and severally to the said corporation, and in the 
event of its dissolution, to any of the creditors thereof, 
for the full amount of such excess. 

15. Sec. 15. No corporation organized under this 
act shall, by any implication or construction, be deemed 
to possess the power of issuing bills, notes, or other evi¬ 
dences of debt for circulation as money. 

1 6 . Sec. 1 6 . (As amended by Act of April 21th, 1863 
— Stat. 1863, p. 736.) Each stockholder shall be individ¬ 
ually and personally liable for his proportion of all the 
debts and liabilities of the company, contracted or in¬ 
curred during the time that he was a stockholder, for 
the recovery of which, joint or several actions may be 
instituted and prosecuted. In any such action, whether 
joint or several, it shall be competent for the defendant 
or defendants, or any or either of them, on the trial 
of the same to offer evidence of the payment, by 
him or them, or any or either of them, of any debts or 
liabilities of such corporations, and, upon proof of such 
payment, the same shall be taken into account and cred¬ 
ited to the party or parties making such payment, and 
judgment shall not be rendered against the party or 
parties defendant proving such payment for a sum ex¬ 
ceeding the amount of his or their proportion of the debts 
and liabilities of the corporations, after deducting there¬ 
from the sums proven to have been paid by him, them, 
or any or either of them, on account thereof. 

17. Sec. 17. No person holding stock as executor, 
administrator, guardian, or trustee, or holding it as col¬ 
lateral security, or in pledge, shall be personally subject 


14 


to any liability as a stockholder of the company; but 
the person pledging the stock shall be considered as 
holding the same, and shall be liable as a stockholder 
accordingly; and the estate and funds in the hands of 
the executor, administrator, guardian, or trustee, shall 
be liable in like manner and to the same extent as the 
testator or intestate, or the ward or person interested in 
the trust fund would have been, if he had been living 
and competent to act and hold the stock in his own name. 

18. Sec. 18. It shall be the duty of the trustees of 
every company incorporated under this act, to cause a 
book to be kept containing the names of all persons, 
alphabetically arranged, who are or shall become stock¬ 
holders of the corporation, and showing the number of 
shares of stock held by them respectively, and the time 
when they respectively became the owners of such 
shares; which book, during the usual business hours of 
the day, on every day except Sunday and the Fourth of 
July, shall be open for the inspection of stockholders 
and creditors of the company at the office or principal 
place of business of the company; and any stockholder 
or creditor shall have the right to make extracts from 
such book, or to demand and receive from the clerk or 
other officer having charge of such book, a certified 
copy of any entry made therein ; such book or certified 
copy of any entry shall be presumptive evidence of the 
facts therein stated, in any action or proceeding against 
the company, or against any one or more stockholders. 

19. Sec. 19. If the clerk or other officer having 
charge of such book shall make any false entry, or 
neglect to make any proper entry therein, or shall refuse 
or neglect to exhibit the same, or to allow the same to 
be inspected, or extracts to be taken therefrom, or to 
give a certified copy of any entry therein, as provided 


15 


in the preceding section, lie shall be deemed guilty of a 
misdemeanor, and shall forfeit and pay to the party in¬ 
jured a penalty of one hundred dollars, and all damages 
resulting therefrom; and for neglecting to keep such 
book for inspection as aforesaid the corporation shall 
forfeit to the people the sum of one hundred dollars for 
every day it shall so neglect—to be sued for and re¬ 
covered in the name of the people by the District At¬ 
torney of the county in which the principal place of 
business of the corporation is located. 

20. Sec. 20. Any company incorporated under this 
act may, by complying with the provisions herein con¬ 
tained, increase or diminish its capital stock to any 
amount which may be deemed sufficient and proper for 
the purposes of the corporation ; but before any cor¬ 
poration shall be entitled to diminish the amount of its 
capital stock, if the amount of its debts and liabilities 
shall exceed the sum to which the capital is proposed to 
be diminished, such amount shall be satisfied and reduced 
so as not to exceed the diminished amount of capital. 

21. Sec. 21. Whenever it is desired to increase or 
diminish the amount of capital stock, a meeting of the 
stockholders may be called by a notice signed by at least 
a majority of the trustees, and published for at least four 
weeks in some newspaper published in the county where 
the principal place of business of the company is located, 
which notice shall specify the object of the meeting, the 
time and place where it is to be held, and the amount to 
which it is proposed to increase or diminish the capital; 
and a vote of two-thirds of all the shares of stock shall 
be necessary to an increase or diminution of the amount 
of the capital stock. 

22. Sec. 22. If at any meeting so called a sufficient 
number of votes has been given in favor of increasing 




16 


or diminishing the amount of capital, a certificate of the 
proceedings, showing a compliance with these provisions, 
the amount of capital actually paid in, the whole amount 
of the debts and liabilities of the company, and the 
amount to which the capital stock is to be increased or 
diminished, shall be made out, signed, and verified by 
the affidavit of the chairman and secretary of the meet¬ 
ing, certified by a majority of the trustees, and filed, as 
required by the second section of this act; and when 
so filed, the capital stock of the corporation shall be in¬ 
creased or diminished to the amount specified in the 
certificate. 

23. Sec. 23. Upon the dissolution of any corpora¬ 
tion formed under this act, the trustees at the time of 
the dissolution shall be trustees of the creditors and 
stockholders of the corporation dissolved, and shall have 
full power and authority to sue for and recover the debts 
and property of the corporation, by the name of trustees 
of such corporation; collect and pay the outstanding 
debts; settle all its affairs, and divide among the stock¬ 
holders the money and other property that shall remain 
after the payment of the debts and necessary expenses. 

24. Sec. 24. Any corporation formed under this 
act may dissolve and disincorporate itself by present¬ 
ing to the County Judge of the county in which the 
meetings of the trustees are usually held, a petition to 
that effect, accompanied by a certificate of its proper 
officers, and setting forth that at a general or special 
meeting of the stockholders called for that purpose, it 
was decided by a vote of two-thirds of all the stock¬ 
holders to disincorporate and dissolve the corporation ; 
notice of the application shall then be given by the 
clerk, which notice shall set forth the nature of the ap¬ 
plication, and shall specify the time and place at which 


% 


17 


it is to be heard, and shall be published in some news¬ 
paper of the county once a week for four weeks, or if 
no newspaper is published in the county, by advertise¬ 
ment posted up for thirty days in three of the most 
public places in the county. At the time and place ap¬ 
pointed, or any other to which [it] may be postponed 
by the Judge, he shall proceed to consider the applica¬ 
tion, and, if satisfied that the corporation has taken the 
necessary preliminary steps, and obtained the necessary 
vote to dissolve itself, and that all claims against the 
corporation are discharged, he shall enter an order de¬ 
claring it dissolved. 

25. Sec. 25. The fifth chapter of “An Act concerning 
Corporations,” passed April 22d, 1850, is repealed; but 
this repeal shall not be construed to destroy the exist¬ 
ence of any company already formed under the pro¬ 
visions of said chapter, nor to affect any right acquired 
or liability incurred under the same; but as to all such 
companies, the provisions of said chapter shall continue 
in full force, except in those instances in which any 
company heretofore incorporated may avail itself of the 
provisions of the next section of this act. 

2G. Sec. 2G. Any company incorporated under the 
said fifth chapter of “An Act concerning Corporations,” 
passed April 22d, 1850, may continue its corporate exist¬ 
ence under this act by adopting a resolution to that 
effect by a vote of two-thirds of all the stockholders, and 
filing a certificate thereof, signed by its proper officers, 
in the office of the Secretary of State and of the County 
Clerk of the county in which is located the principal 
place of business of the corporation. From the time of 
filing the certificate, the corporation shall be subject only 
to the provisions of this act, but the change so made 
shall not affect any right acquired or liability incurred 
previously by the corporation. 


18 


27. Sec. 27. Corporations formed under this act, 
and the members thereof, shall not be subject to the 
conditions and liabilities contained in an act entitled 
“An Act concerning Corporations,” passed April 22d, 
1850. 


SUPPLEMENTARY ACT. 


AN ACT supplementary to an Act entitled “An Act to 
provide for the formation of Corporations for certain 
purposes? passed April 14 th, 1853. 

[Approved March 27th, 1857.—Wood's Dig. p. 123; Stat. 1857, p. 121.] 

28. Section 1 . It shall be the duty of the trustees 
of every company, incorporated under this act for the 
purpose of ditching, mining, or conveying water for 
mining purposes, to cause a book to be kept, containing 
the names of all persons, alphabetically arranged, who 
are, or shall become stockholders of the corporation, and 
showing the number and designation of shares of stock 
held by them respectively, and the time when they 
respectively became the owners of such shares; also a 
book or books, in which shall be entered at length, in a 
plain and simple manner, all by-laws, orders, and resolu¬ 
tions of the company and board of trustees, and the 
manner and time of their adoption, which books, during 
the business hours of the day, Sundays and Fourth of 
July excepted, shall be open for the inspection of stock¬ 
holders and the creditors of the company, each individual 
stockholder, and their duly authorized agents and attor¬ 
neys, at the office or principal place of business of the 
company ; provided , that the office and books of every 
such company shall be kept, and the books of the com¬ 
pany shall be open, as aforesaid, in the county in which 



20 


their business is transacted, and every stockholder or 
creditor, as aforesaid, or their agents, or attorneys shall 
have the right to make extracts from such books, or 
upon payment of reasonable clerk’s fees therefor, to 
demand and receive from the clerk, or other officer hav¬ 
ing the charge of such books, a certified copy of any 
entry made therein ; such book, or certified copy of any 
entry, shall be presumptive evidence of the facts therein 
stated, in any action or proceeding against the company, 
or any one or more stockholders. 

29. Sec. 2. If the clerk or other officer having 
charge of such book, shall make any false entry, or 
neglect to make any proper entry therein, or shall refuse 
or neglect to exhibit the same, or allow the same to 
be inspected, or extracts to be taken therefrom, or to 
give a certified copy of any entry therein, as provided 
in the preceding section, he shall be deemed guilty of a 
misdemeanor, and shall forfeit and pay to the party in¬ 
jured a penalty of two hundred and one dollars, and all 
damages resulting therefrom, to be recovered in any 
court of competent jurisdiction in this State; and for 
neglect to keep such book for inspection, and at the 
place provided for in last section, the corporation shall 
forfeit to the people of the State of California the sum 
of two hundred and one dollars for every day they shall 
so neglect; to be sued for and recovered before any 
court of competent jurisdiction in the county in which 
the principal business of such company is transacted; 
and it shall be the duty of the District Attorney within 
and for such county to prosecute such action, in the name 
of and for the benefit of the people of the State of Cali¬ 
fornia. And it is further provided, that in case any such 
incorporated company shall refuse or neglect, for the 
space of one full year after the passage of this act, to 


21 


comply with the provisions of this and the preceding 
section, then, upon the showing of such facts, by peti¬ 
tion of any person aggrieved thereby, and due proof 
thereof, before the County Judge of the county in which 
such company’s principal business is transacted, after 
such company shall have been duly notified thereof, by 
summons, to be issued by said Judge, citing such com¬ 
pany to appear before such Judge, at a time and place 
therein mentioned, which shall not be less than ten or 
more than thirty days from the date of such summons, 
such company shall, by said Judge, be declared and de¬ 
creed to be disincorporated, so far as to deprive said 
company of all the privileges of this act, but in no man¬ 
ner to affect the remedy of all persons against such 
company, to be exercised as this act provides ; provided , 
that nothing contained in the provisions of this section, 
concerning the disincorporating of such companies, shall 
be so construed as to prevent the enforcement of the 
other remedies in this section mentioned, at any time 
after the passage of this act, except as herein provided. 


ASSESSMENTS. 


AN A CT in reference to Corporations organized in this 

State for the purpose of Alining out of this State. 

[Passed March 5th, 1861—Stat. 1861, p. 41.] 

30. Section 1 . That it may be lawful for any cor¬ 
poration organized in this State, under the laws of this 
State, for the purpose of mining, or carrying on mining 
operations without this State, whose business office is in 
this State, to levy assessments upon the capital stock 
thereof to pay the debts, future or present, of said cor¬ 
poration, or to carry on the business of said corporation ; 
provided, the same shall be equal and uniform, and at 
no one time exceed five per cent, of the capital stock, 
and such levy, or assessment, shall constitute a valid 
and binding obligation upon the holders of such stock 
to pay the sum so assessed against the stock so held. 
Notice of each such call, or assessment, shall be given 
to the respective stockholders personally, or shall be 
published once a week for at least four .weeks in some 
newspaper published at the place designated as the 
principal place of business of the corporation, and also 
in some newspaper published nearest to the point where 
said mining operations are being carried on. If, after 
such notice has been given, any stockholder shall make 



28 


default, in the payment of such call, or assessment, as to 
the shares of stock held by him, so many of such shares 
may be sold as will be necessary for the payment of the 
call, or assessment, on the shares held by him. The sale 
of said shares shall be made as prescribed in the by-laws 
of the company ; provided, that no sale shall be made 
except at public auction to the highest bidder, after a 
published notice of thirty days, published as above 
directed; and that at such sale the person who will 
agree to pay the call, or assessment, so due, together 
with the expense of advertisement and the other ex¬ 
penses of the sale for the smallest number of whole 
shares, shall be deemed the highest bidder. 


CANAL COMPANIES. 


AN ACT to authorize the Incorporation of Canal Com¬ 
panies, and the Construction of Canals. 

[Passed May 14th, 18G2—Stat. 18G2, p. 540.] 

31. Section 1 . Corporations may be formed, under 
the provisions of an act entitled “ An Act to provide 
for the formation of Corporations for certain purposes,” 
passed April 14th, 1853, and the several acts amendatory 
thereof and supplemental thereto, for the following pur¬ 
poses : The construction of canals, for the transportation 
of passengers and freights, or for the purpose of irriga¬ 
tion or water power, or for the conveyance of water for 
mining or manufacturing purposes, or for all of such 
purposes. 

32. Sec. 2. The right is hereby granted to any 
company organized under the authority of this act, to 
construct all works necessary to the objects of the com¬ 
pany, to make all surveys necessary to the selection of 
the best site for the works, and of the lands required 
therefor, and to acquire all lands, waters not previously 
appropriated, and other property necessary to the pro¬ 
per construction, use, supply, maintenance, repairs, and 
improvements, of the works, in the manner and by the 
mode of proceedings prescribed in an act entitled “ An 
Act to provide for the Incorporation of Railroad Com- 



25 


panies, and the Management of the affairs thereof, and 
other matters relating thereto,” passed May 20th, 1861. 
(For the Railroad Act hereby referred to see Statutes 
of 1861, page 607.) 

33. Sec. 3. Every company organized as aforesaid 
shall have power, and the same is hereby granted, to 
make rules and regulations for the management and 
preservation of their works not inconsistent with the 
laws of this State, and for the use and distribution of 
waters and the navigation of the canals, and to establish, 
collect, and receive rates, water rents, or tolls, which 
shall be subject to regulation by the Board of Super¬ 
visors of the county or counties in which the work is 
situated, but which shall not be reduced by the super¬ 
visors so low as to yield to the stockholders less than 
one and one-half per cent, per month upon the capital 
actually invested. 

34. Sec. 4. Every company organized under the 
authority of this act shall construct, and keep in good 
repair at all times, for public use, across their canal, all 
of the bridges that the Board of Supervisors of the 
county or counties in which such canal is situated shall 
require; said bridges being on the lines of public high¬ 
ways, and necessary for public use in connection with 
such highways. 

35. Sec. 5. The provisions of this act shall not 
apply to the counties of Nevada, Placer, Amador, Sierra, 
Klamath, Del Norte, Trinity, Butte, Plumas, Calaveras, 
and Tuolumne. 


9 


FOR THE PROTECTION OF GROWING CROPS, 

BUILDINGS, ETC. 


AN ACT to protect Owners of Growing Crops , Build¬ 
ings and other Improvements in the Mining Districts 
of this State. 

[Passed April 25th, 1855.—Wood’s Dig. p. 54; Stat. 1855, p. 145.] 

36. Section 1 . No person shall, for mining pur¬ 
poses, destroy or injure any growing crops of grain or 
garden vegetables growing upon the mineral lands of 
this State, nor undermine or injure any house, building, 
improvement, or fruit trees, standing upon mineral 
lands and the property of another, except as hereinafter 
provided. 

37. Sec. 2. Whenever any person, for mining pur¬ 
poses, shall desire to occupy or use any mineral lands 
of this State, then occupied by such growing crops of 
grain, garden vegetables, fruit trees, houses, buildings, 
or other improvements, property of another, such per¬ 
son shall first give bond to the owner of the growing 
crop, building, fruit trees, or other improvement, to be 
approved by a Justice of the Peace of the township, 
with two or more sufficient sureties, in a sum to be fixed 
by three disinterested citizens, householders of the 
township, one to be selected by the obligor, one by the 



27 


obligee, and one by a Justice of the Peace of the town¬ 
ship, conditional that the obligor shall pay to the obligee 
any and all damages which said obligee may sustain in 
consequence of the destruction by the obligor, or those 
in his employ, of the growing crops, fruit trees, im¬ 
provements, or buildings of the obligee; provided, that 
the word improvements in this act shall be construed 
to mean any superstructure on said farm, ranch or gar¬ 
den, and nothing more. 

38. Sec. 3. If any person or persons shall violate 
the provisions of the first and second sections of this 
act, he or they shall be deemed guilty of a misde¬ 
meanor, and on conviction thereof before any court of 
competent jurisdiction, shall be fined in a sum not ex¬ 
ceeding two hundred dollars, nor less than fifty dollars, 
or by imprisonment in the County Jail of said county 
not exceeding three months, either or both, at the dis¬ 
cretion of the Court; provided , nothing in this act shall 
prevent miners from working any mineral lands in this 
State, after the growing crops on the same are har¬ 
vested. 


CONVEYANCE OF MINING CLAIMS. 


AN ACT to 'provide for the Conveyance of Mining 

Claims. 

[Passed April 13th, I860.—Wood’s Dig. p. 896; Stat. 1860, p. 175.] 

39. Section 1 . Conveyances of mining claims may 
be evidenced by bills of sale or instruments in writing 
not under seal, signed by the person from whom the 
estate or interest is intended to pass, in the presence of 
one or more attesting witnesses; and also all convey¬ 
ances of mining claims heretofore made by bills of sale 
or instruments in writing, not under seal, shall have the 
same force and effect as prima facie evidence of sale, as 
if such conveyances had been made by deed under seal; 
provided , that nothing in this act shall be construed to 
interfere with or repeal any lawful local rules, regula¬ 
tions, or customs, of the mines in the several mining 
districts of this State ; and, provided further, every such 
bill of sale or instrument in writing shall be deemed 
and held to be fraudulent and void as against all per¬ 
sons except the parties thereto, unless such bill of sale 
or instrument in writing be accompanied by an imme¬ 
diate delivery to the purchaser, of the possession of the 
mining claim or claims therein described, and be fol¬ 
lowed by an actual and continued change of the posses- 



29 


sion thereof, or unless such bill of sale or instrument in 
writing shall be acknowledged and recorded as required 
by law in the case of conveyances of real estate. 

40. Sec. 2. This act shall apply to gold min 
claims only. (This section was repealed bp Act 
March 2 Gth, 18 Go— Stat. 1863, p. 98.) 


^ 03 






DECISIONS 


O F 

THE SUPREME COURT 

OF THE STATE OF CALIFORNIA. 


CORPORATIONS. 


Certilioa-to of Incorporation. 

41. The existence of a corporation, formed under 
a general statute, requiring certain acts to be done be¬ 
fore the corporation can be considered in esse , or its 
transactions be valid, must be proved by showing, at 
least, a substantial compliance with the requirements of 
the statute. (Mokelumne Hill 0. 3r M. Co. v. Wood - 
bury , 14 Cal., 424.) 

42. The omission of such acts as are declared neces¬ 
sary steps in the process of incorporation will be fatal, 
even collaterally, when the fact of incorporation can be 
questioned. (A/.) 

43. But as to such other acts required of the persons 
seeking to become incorporated, but not made prere¬ 
quisites to the assumption of corporate powers, the cor¬ 
poration is responsible only to the Government in a direct 
action of forfeiture. (Id.) 

44. Under our law, corporations have a legal exist¬ 
ence from the date of filing the certificate of incorpora¬ 
tion in the County Clerk’s office. (Id.) 

45. That a duplicate certificate is not filed in the 




82 


office of the Secretary of State, is matter between the 
corporation and the State, and not necessary to be shown 
on the issue of corporation or no corporation in suits 
against third persons. (Id.} 

46. Where the certificate of incorporation states that 
San Francisco is 46 the place of business,” instead of 
“ the principal place of business Held , to be mere 
technical error, not invalidating the charter. (Exparte 
Spring Valley Water Works , 17 Cal., 182.) 


Assignment and Transfer of Stock. 

47. Under the twelfth section of the Act concerning 
Corporations, passed April 22d, 1850, no transfer of 
stock is good against third parties, unless the transfer be 
made on the books of the company. ( Weston v. Bear 
Hirer and Auburn W. M. Co., 5 Cal., 186.) 

48. Where a femme sole became the owner of shares 
in a company, and afterwards marries, and after marriage 
the husband and wife execute an indorsement on the 
certificate of stock, purporting to sell the same to A, 
without any privy examination of the wife, and there 
being at the time no inventory of the separate property 
of the wife on record: Held , that such sale was void, as 
against a subsequent purchaser, under an instrument 
duly signed and acknowledged. ( Selover v. American 
Hussion Com. Co., 7 Cal., 266.) 

49. Where A received an assignment of stock in a 
corporation, and the stock was subsequently attached 
under a judgment against the vendor, and afterwards the 
stock was regularly transferred to A, who then obtained 
an assignment of the judgment under which the stock 
was attached : Held, that the assignment of the judg¬ 
ment at once merged die lien in the higher right; and 
that A, as regarded third parties, became the absolute 
owner of the stock. (Stroutv. Natoma W. M. Co., 
9 Cal., 78.) 

50. A railroad company cannot refuse to enter the 
transfer of stock in the company on their books on the 
ground that the assignor of the stock is indebted to the 



83 


company, unless the company had a lien upon the stock at 
the date of its transfer. ( People v. Crockett, 9 Cal., 112.) 

51. Where shares of stock in a corporation have 
been regularly transferred as security for a loan, the 
mortgagee is the only proper garnishee in a suit against 
the mortgagor, and attachment on his interest in the 
corporation. ( Edwards v. Beugnot, 7 Cal., 1G2.) 

52. A person who has been a stockholder in an in¬ 
corporated company, but ceased to be such holder before 
suit was brought, is a competent witness in an action in 
the name of such company. ( Tuolumne County W. Co. 
v. Columbia and Stanislaus W. Co., 10 Cal., 193.) 

53. Where from an instrument transferrin^: shares 
of stock as security for a note, and from other circum¬ 
stances, the transaction is clearly a loan, a clause of 
foreclosure on non-payment, or a provision that the mort¬ 
gagee may take the property for the debt, does not make 
the instrument any the less a mortgage. ( Smith v. ’49 
and ’56 Quartz M. Co., 14 Cal., 242.) 

54. Where stock is transferred to secure a debt, and 
is still in the hands of the transferree, and plaintiff avers 
that the stock is worth more than the debt, and that de¬ 
fendant has received from dividends more than enough 
to pay it, equity has jurisdiction to compel an account, 
prevent a transfer, and direct a retransfer and delivery 
of the stock. {Ik.) 

55. The clause in such instrument “ I hereby sell, 

transfer, and set over.all my right, title, and interest 

to the said.stock, provided I fail to pay.the 

above sum.on the day the same becomes due and 

payable,” does not make it a conditional sale, there be¬ 
ing no money given or agreed to be given for the stock, 
and no agreement to take it at any price at the time, of 
the contract. {Ik.) 

56. A mortgagee of stock in such case does not get 
an absolute title to the stock by the mere default of pay¬ 
ment of the mortgage debt. {Ik.) 

57. Under the Chattel Mortgage Act of 1857, a 
mortgage of shares of stock in an incorporated company 
is valid without a transfer on the books of the company, 
as is required by the Corporation Act of 1853, relative 

2 * 






34 


to pledges of stock by delivery of the certificates. The 
act of 1853 has no effect on the act of 1857. (Ede v. 

Johnson , 15 Cal., 53.) 

58. At one time, seven shares of stock in a company 
are pledged by defendant to plaintiff, as security for a 
note of defendant then executed. At another time, 
twenty more shares are pledged as security for another 
note of defendant then executed. In suit on the notes, 
and for sale of the stock, etc., the judgment was for the 
amount of the notes, and directed a sale of all the shares 
of stock, and an application of the proceeds to the pay¬ 
ment of the judgment: Held, that the judgment was 
wrong so far as it ordered a sale of the stock in gross, 
and an application of the proceeds to the entire indebted¬ 
ness. (. Mahoney v. Caperton, 15 Cal., 313.) 

59. A party who purchases at Sheriff’s sale stock of 
a corporation, knowing that the certificates of such stock 
have been hypothecated, is chargeable with notice of the 
fact, and takes subject to the claim of pledgee. ( Weston 
v. Bear River Co., G Cal., 425.) 

60. Neither the Incorporation Act of 1850, nor that 
of 1853, was intended to cover such a case, but to ap¬ 
ply only to transfers and purchases in good faith, without 
notice. ( Id .) 

61. Plaintiff assigns to defendant, September 22d, 
two shares of stock in a mining company, stating in the 
assignment, “ I authorize the transfer to him, (defend¬ 
ant) with all the dividends made after the morning of 
the 23d of September.” Both parties expected a divi¬ 
dend on Monday, the 22d. The trustees did not, in fact, 
declare dividends until between noon and one o’clock on 
Tuesday: Held, that the dividends belonged to plaintiff; 
and that parol evidence was admissible to explain the 
transaction and point out its meaning. {Brewster v. La- 
tkrop, 15 Cal., 21.) 


Powers and ILi;al>ilitiess of Corporations. 

62. The power to issue bills or notes as a circulat¬ 
ing medium is expressly excluded by the statute; the 
right to issue them in all other proper cases must be in- 



35 


ferred as incident to tlie expressed powers or objects of 
the corporation. (Smith v. Eureka Flour Mills , 6 Cal. 1.) 

63. The express powers of a corporation must be 
exercised in the manner pointed out by the statute, but 
the powers merely incident thereto may be exercised by 
its officers or agents. (Id.) 

64. Where the answer in a suit against a corpora¬ 
tion, on its note, relies simply on the want of power of 
tlie”corporation to issue notes, the defendant cannot _■ af¬ 
terwards object that the plaintiff has not shown that the 
officers executing the note were empowered by the cor¬ 
poration to do so. (Id.) 

65. Neither the general incorporation act, nor the 
act concerning plank roads and turnpikes, gives any 
exclusive privileges to the corporation first established. 
Others may build a road on or near the same line of 
travel. ( Indian Canon Road Co. v. Robinson, 13 Cal. 
520.) 

66. Where the charter of a hospital was repealed 
and a charter granted to the new one, and the officers 
of k the former were directed to deliver to the trustees of 
the latter “ all the property, real and personal, held by 
them in trust and for the old institution, and that the 
latter should pay out of the funds in its hands all the 
debts owing by the old one : Feld, that the new corpora¬ 
tion was bound to pay all such debts, without regard to 
the sufficiency of the fund derived from the corporation. 
(.Johnson v. State Marine Hospital, 2 Cal. 319.) 

67. N., the president and managing agent of a cor¬ 
poration for ditch and mining purposes, and who was 
vested by a resolution of the company, with discretion¬ 
ary powers as to “ all matters pertaining to the prosecu¬ 
tion of the projects of the company,”fand who had been 
in the habit of making such contracts as he deemed 
necessary for the good of the corporation, purchased of 
plaintiff and one S. in the name and for the use of the cor¬ 
poration a house, to be used as an office for the company, 
and a boarding house for the laborers employed, for three 
thousand dollar|pfive hundred dollars of which N. paid 
down, and gave a mortgage on the premises in the name 
of the corporation, to secure the balance. N. then as 


36 


agent took possession of the premises, and, subsequent¬ 
ly, several meetings of the company were held in the 
house. Six weeks after the purchase, at a meeting of 
the trustees, a resolution was offered and rejected, de¬ 
claring the contract legal and valid. Subsequently, the 
premises were destroyed by fire. The present plaintiff, 
who had obtained S.’s interest in the debt, brought suit 
against the corporation to recover the amount, and for 
a foreclosure of the mortgage: Held , that N. had au¬ 
thority to make the contract to bind the corporation; 
and if such authority were doubtful, the acts of the cor¬ 
poration amounted to a ratification of the contract. 
{Shaver v. Bear River and Auburn JV. and M. Co ., 10 
Cal. 396.) 

68. A corporation may bind itself by a note and 
mortgage, made by its President and Secretary, and 
signed by them in their official capacity as such. (Rowe 
v. Table Mountain Water Co. 10 Cal. 441.) 

69. Plaintiff and others owned and worked a min¬ 
ing claim from 1855 to 1858, when they formed them¬ 
selves into a corporation with twenty-one shares of 
stock at one hundred dollars each; and from that time 
the claim was held as corporate property. The corpo¬ 
ration levied assessments on the shares of stock, of 
which plaintiff owned one; and plaintiff failing to pay, 
sold his share at public auction. lie now sues the cor¬ 
poration for an undivided one twenty-first of the mining 
claim: Held, that plaintiff has mistaken his remedy; 
that if the corporation had no power to forfeit his stock 
and hence it was improperly sold, he may maintain an 
action for its recovery, but not for a specific interest in 
the claim—not being in a position to question the title 
of the corporation, particularly as the property is a 
mining claim and could only be held by occupation and 
possession. (Smith v. Maine Boys Tunnel Co., 18 Cal. 
111 .) 

70. A conveyance that would come within the stat¬ 
ute of frauds if made by an individual, if made by a 
corporation would be liable to the same construction, 
and if void in the former case would i* void in the lat¬ 
ter. (Smith v. Morse, 2 Cal. 524.) 


37 


71. Such conveyance will not affect the lien of a 
judgment regularly obtained against the grantor, (lb.) 

72. The clear object of the restriction of issuing 
bills, notes, etc., by any corporation, is to prevent them 
by any device from carrying on the business of banking, 
or in other words to prevent the formation of moneyed 
corporations; but it does not prevent them from issuing 
bills or evidences of indebtedness for moneys borrowed 
by them. (Maqee v. Mohelumne Hill C. 4* M. Co., 5 
Cal. 259.) 

73. In suits for the possession of land by ditch com¬ 
panies, incorporated under the Act of April 14th, 1853, 
by the fourth section of which they are authorized “to 
purchase, hold, sell, and convey such real and personal 
estate as the purposes of the corporation shall require,” 
the defendants cannot question the necessity of such 
lands for the purposes of the corporation. This is mat¬ 
ter between the Government and the corporation. (Na- 
toma W. 4* M. Co. v. Clarkin , 14 Cal. 544.) 

74. The policy of this State has altered the rigid¬ 
ness of the common law, which disabled a corporation 
from making a contract except under its corporate seal. 
(Smith v. Eureka Flour Mills , 6 Cal. 6.) 

75. Under the laws of this State, the power of cor¬ 
porations to create debts is treated as an incident to the 
express powers, and not as in itself one of the express 
powers. (lb.) 

76. All corporations by the general act have power 
to make by-laws for the “ organization of the company,” 
the “management of its property,” the “regulation of 
its affairs, and for carrying on all kinds of business with¬ 
in the objects and purposes of the company,” in which 
there is no reason to exclude the right of making pro¬ 
missory notes, (lb.) 

77. Where the promissory note of a corporation, 
executed by its officers, provides that only the assets of 
the corporation, and none of the property of stockhold¬ 
ers, shall be liable, the corporation cannot raise the ob¬ 
jection as effecting its own liability, (lb.) 

78. An incorporated company is not bound by the 
acts or admissions of its members, unless acting by its 


38 


express authority. (Shay v. Tuolumne Co. W. Co ., 6 
Cal. 73.) 

79. A corporate act is not essential in all cases to 
fasten a liability, and if it were necessary, the law 
would sometimes presume, in order to uphold fair deal¬ 
ing and prevent gross injustice, the existence of such 
act, and estop the corporation from denying it. (San 
Francisco Gas Co. v. City of San Francisco , 9 Cal. 
453.) 

80. Where the contract is executory, the corporation 
cannot be held bound unless the contract is made in 
pursuance of the provisions of its charter; but where 
the contract has been executed and the corporation has 
enjoyed the benefit of the consideration, an implied as¬ 
sumpsit arises against it. (Ib.) 

81. Where a draft is drawn by the President and 
Secretary of a corporation upon its Treasurer, no notice 
of presentation and non-payment is necessary to hold 
the corporation. The draft, in such case, is only an or¬ 
der of the corporation upon itself. (Dennis v. Tcible 
Mountain Water Co., 10 Cal. 369.) 

82. It does not follow, because an agent purchases 
property which is not absolutely necessary for the pur¬ 
poses of the corporation, that the latter can, after re¬ 
ceiving the property, avoid the payment of the purchase 
money. (Shaver v. Bear lliver and Auburn W. 8? M. 
Co., 10 Cal. 400.) 

83. Where the President of a corporation has the 
alleged power to make a contract for the corporation, 
though his authority be doubtful, yet the subsequent 
acts of the company may amount to a ratification. 
(ib.) 

84. Corporations can possess or exercise such cor¬ 
porate powers only as are expressly given by statutes, 
or by the charter, and such as shall be necessary to the 
exercise of the powers enumerated and given. ( Dunbar 
v. City of San Francisco, 1 Cal., 356. Correas v. City 
of San Francisco, 1 Cal., 452.) 

85. Two corporations cannot hold as joint tenants, 
but may as tenants in common. ( Dewitt v. City of San 
Francisco, 2 Cal., 297.) 


39 


86. Corporations are bound to follow strictly the 
letter of their charter, and can exercise no power unless 
granted to them, or absolutely necessary to carry out 
the power so granted. ( Smith v. Morse , 2 Cal., 538.) 

87. The word person, in its legal signification, is a 
generic term, and was intended to include artificial as 
well as natural persons. ( Douglas v. Pacific M. S. S. 
Co ., 4 Cal., 306.) 

88. In reference to all transactions in the nature of 
a contract, a corporation must be looked upon and treated 
as a private person, and its contracts construed in the 
same manner and with the like effect as those of natural 
persons. {Touchard v. Touchard , 5 Cal., 307.) 

80. The Incorporation Act of 1853 does not sub¬ 
stantially alter the Incorporation Law of 1850. ( Weston 
v. Pear River and Auburn W. 3 r M. Co ., 6 Cal., 429.) 

90. If a charter confers upon a corporation a given 
power, and at the same time prescribes the mode of its 
exercise, the provisions must be held as dependent and 
must be construed accordingly. (Holland v. City of 
San Francisco , 7 Cal., 375.) 

91. Charters of corporations are special grants of 
power emanating from the paramount authority. The 
corporation owing its existence to the law is precisely 
what the law makes it. ( City of Oakland v. Carpentier , 
13 Cal., 545.) 


92. A surviving partner has a right to vote at an 
election for officers of a corporation, formed under the 
general incorporation act of this State of 1853, the stock 
in his hands as assets of the partnership, the business of 
the firm being unsettled. (People v. Hill, 16 Cal., 114.) 

93. The fact that a portion of the stock voted by 
such surviving partner stood upon the books of the cor¬ 
poration at the time of the election, in the name of the 
deceased partner alone, does not affect the right to vote, 
if in fact the stock belonged to the partnership, (lb.) 

94. Semble upon principle, that the real owner of 
stock in such corporations is entitled to present it at the 



40 


meetings of the corporation, and the mere fact that he 
does not appear as the owner upon the books of the 
company should not absolutely exclude him from the 
privilege of so doing. (./&.) 

95. The New York cases, establishing a different 
doctrine, are based upon a statute making the books of 
the corporation the only evidence as to ownership of the 
stock. (/6.) 


Actions. 

9G. In an action against a corporation, a witness who 
was a member of the corporation when the liabilities 
were incurred on which the action is brought, but who 
had sold out before the commencement of the action, is 
incompetent from interest. ( McAidey v. York Mining 
Co ., 6 Cal., 80.) 

97. In an action against a corporation by one of its 
members, upon an implied contract for the value of 
services as Secretary, it is competent for the defendant 
to show that by the usage and custom of the corpora¬ 
tion no compensation was chargeable for such services. 
(Fraylor v. Sonora Mining Company , 17 Cal., 594.) 

98. If such usage existed, plaintiff’s position as a 
member and officer of the corporation is sufficient prinia 
facie evidence to charge him with a knowledge of its 
existence; and the inference would be that he accepted 
the office and performed its duties without expecting 
compensation. ( Id .) 

99. The code made no distinction between the rules 
of pleading applicable to natural persons and those ap- 
P ii cable to artificial persons. (S . F. Gas Co. v. San 
Francisco , 9 Cal. 4G7.) 

100. Where a decree rendered in a suit against a 
corporation contained a direction for the sale of the 
interest of individuals not parties to the suit, and from 
such decree the corporation alone appealed: Held , that 
the corporation could not take advantage of the error in 
the decree in embracing individuals. ( Dennis v. Table 
Mountain W. Co., 10 Cal., 3G9.) 

101. In an action to restrain the issuing of bonds by 



41 


a corporation, the persons to wliom the bonds are to be 
issued are necessary parties to such action. ( Hutchin¬ 
son v. Burr , 12 Cal., 103. Patterson v. Supervisors of 
Yuba Co ., 12 Cal., 10G.) 

102. Where on suit against defendants as members 
of a quartz company, one.defendant pleads that he was 
not a member of the company, and the finding of the 
court is that the allegations of the complaint are true, 
and that said defendant was a member of the company 
as to plaintiff Parke, the finding supports a judgment 
for plaintiff. ( Parke v. Ilinds , 14 Cal., 417.) 

103. The rule requiring all persons materially in¬ 
terested to be made parties to a suit is dispensed with, 
when it is impracticable or very inconvenient, as in cases 
of joint associations composed of numerous individuals. 
( Gorman v. Russell , 14 Cal., 530.) 

104. Where, in an action against a corporation, the 
return of the Sheriff showed that he had served the 
summons in the action “upon James Street, one of the 
proprietors of the company Held , that it was not suffi¬ 
cient evidence of service to give the Court jurisdiction: 
it not appearing that Street was President, or head of 
the corporation, or Secretary, Cashier, or Managing 
Agent thereof. (O’ Jlrien v. Shaw's Flat and Tuolumne 
Canal Co ., 10 Cal., 343.) 

105. A Sheriff’s return on the summons against a 
corporation, that he served the same on the President 
and Secretary of the company, is prima facie evidence 
that the persons named in the return were such officers. 
{Rowe v. Table Mountain VC. Co., 10 Cal., 441. Wil¬ 
son v. Spring Hill Quartz M. Co.. 10 Cal., 445.) 

10G. A joint stock mining association was formed in 
New York for the purpose of mining in California, which 
company was to continue several years, with a prohibi¬ 
tion against dissolution within one year after the arrival 
of the company in California, except on certain condi¬ 
tions, which had not been complied with: Held, that a 
portion of the company could not dissolve the company 
at their will and pleasure, but it being found impracti¬ 
cable to keep the company together, the Court decreed 
a dissolution and a distribution of the effects of the com¬ 
pany. ( Von Schmidt v. Huntington, 1 Cal., 70.) 


42 


107. The stock being divided into money shares and 
labor shares, the holders of the latter, who had con¬ 
tributed no capital towards the outfit of the company, 
had performed no labor beneficial to the company, and 
had their expenses to California paid out of the funds 
contributed by the holders of the money shares alone, 
and had abandoned the association, which fact, by the 
articles, worked a forfeiture of the labor shares: Held , 
that the assets of the company should be distributed 
among the holders of the money shares alone, and that 
the Court relieve them from the forfeiture. (/5.) 

108. When in a joint stock association certain parties 
contribute money, and hold therefor money shares, and 
that money is paid to defray the expenses of certain 

. operators to California, who contribute no money, but 
who, after laboring for the corporation one year, shall 
receive certain labor shares, and the corporation is dis¬ 
solved by reason of its impracticability, before operation : 
Held , that the assets should be distributed among the 
money shares alone. (/5.) 

109. The right of a member of an incorporated com¬ 
pany to sue the corporation is undoubted. ( Barnstead 
v. Empire Mining Co ., 5 Cal., 299.) 

110. Where there is nothing in the constitution of a 
joint stock company which regulates the remedies of the 
shareholders as between themselves, the general law of 
partnership must govern them. (Ballard v. Kinney , 
10 Cal., 63.) 

111. In suit by a stockholder against a corporation 
and its officers, praying for their removal, and for an 
account and settlement of the affairs of the corporation, 
the decree, after a full hearing on the merits, was in ac¬ 
cordance with the prayer, and also appointed a receiver 
to take charge of the property of the corporation, until 
the further order of the Court; collect money due or to 
become due it; sell certain stock, and pay the certain 
proceeds in accordance with the decree, etc.: Held, that 
this provision in the decree does not destroy its effect as 
a final decree, and that an appeal lies therefrom. (Neall 
v. Hill , 1G Cal. 145.) 

112. The aid of Courts can be invoked only as 


43 


against sucli officers as are intrusted by law with the 
management of the affairs of the corporation ; and as 
against these, the remedy is at law, and not in equity. 

( Ib ‘ ) 

113. The power of removing the private or minis¬ 
terial officers of a private corporation belongs to the 
corporation alone. Courts cannot remove such officers. 

in.) 

114. In suit by a stockholder in a private corpora¬ 
tion, against the corporation and four of the trustees, 
who owned stock sufficient to enable them to control the 
business of the company, for an account and settlement 
of its affairs, alleging fraud and mismanagement on the 
part of the trustees, the Court below, by its decree, de¬ 
prived one of said trustees of his salary as superintend¬ 
ent of the business of the corporation: Held , that this 
was error; that although such superintendent was 
also trustee and treasurer of the corporation, con¬ 
trary to a positive provision of the by-laws; and al¬ 
though, in the management of the business of these of¬ 
ficers, no attention had been paid to the by-laws and 
regulations of the corporation, yet as no fraud was 
shown, and as the superintendent had faithfully per¬ 
formed his duties as such, he was entitled to his salary. 

in.) 

115. If in such case any loss was sustained by the 
corporation from disregard of its by-laws and regula¬ 
tions, the amount of such loss would seem to be the 
measure of relief. (/&.) 

116. Hence, in this case, it was error in the Court 
below to appoint a receiver anc^ decree a sale of the 
property and a settlement of the affairs of the corpora¬ 
tion. Such decree necessarily results in the dissolution 
of the corporation, and would be doing indirectly what 
the Court has no power to do directly. (lb.) 

117. To charge the officers of a corporation with a 
loss sustained by a stockhplder, in a diminution of the 
value of the stock, alleged to have been caused by their 
mismanagement, it should appear very clearly that the 
loss was occasioned by their gross negligence or willful 
misconduct, (lb.) 


44 


] 18. A Court of Equity lias no jurisdiction over cor¬ 
porations, for the purpose of restraining tlieir operations 
or winding up tlieir concerns. Such Court may compel 
the officers of the corporation to account for any breach 
of trust; but the jurisdiction for this purpose is over 
the olhcers personally, and not over the corporation. 

in.) 

119. Where four of the trustees of a private cor¬ 
poration, owning sufficient stock to control its business, 
conduct the business in a grossly negligent manner, 
systematically disregarding the by-laws, keeping no ac¬ 
count of receipts and expenditures, failing to pay their 
own assessments, without any excuse: Held, that a 
stockholder may sue in equity for an account, making 
the corporation and said trustees alone parties—no ob¬ 
jection being taken that all the stockholders were not 
parties—and the trustees will be compelled to make 
good any loss occasioned by their negligence or im¬ 
proper conduct. (./&.) 

120. Each corporator is a principal debtor, and not 
a mere surety for the corporation ; and in relation to 
the creditors of the corporation stands on the same foot¬ 
ing as if it were an ordinary partnership. (Mohelumne 
Hill C. and M. Co. v. Woodbury , 14 Cal. 2Go.) 

121. Under the Constitution and laws of this State, 
each member of a private incorporated company is an¬ 
swerable personally for his proportion of the debts and 
liabilities of the company. (/&.) 

122. A member of the incorporation at the com¬ 
mencement of a suit brought by it, cannot become a 
witness for it on tha trial by selling out his shares of 
stock after suit brought. He is personally liable for his 
proportion of the costs; and his competency as a wit¬ 
ness can only be restored by actual payment of the en¬ 
tire costs of the case—those due and those to become 
due. (db.) 

123. A party who permits himself to stand on the 
books of a water company, incorporated under the stat¬ 
utes of this State, as a stockholder, and holds the office 
of secretary—to which no person but a stockholder is 
eligible—is not a competent witness for the company in 


45 


an action against it for overflowing plaintiff’s mining 
claim. lie is liable for the debts of the company, and 
therefore interested. ( Wolf v. St. Louis Ind. Water Go., 
15 Cal. 319.) 

124. The fact that the stock was held in his name 
in trust for another—the transfer having been made 
simply to enable him to become an officer of the com¬ 
pany—does not relieve him from responsibility. The 
trust in such case is only implied; and the seventeenth 
section of the corporation act of 1853 applies only to 
the trustee of an express trust. (75.) 

125. The allegation that plaintiff was a corporation 
under the laws of this State, is sufficient to establish the 
right to sue under the first section of the act concerning 
corporations. ( Cal. Steam Nav. Co. v. Wright , 6 Cal. 
261.)' 

126. The code imposes upon the defendant, if a cor¬ 
poration, by its officers and agents, the duty of acquir¬ 
ing the requisite knowledge or information respecting 
the matters alleged in the complaint, to enable them to 
answer in the proper form. ( San Francisco Gas Co. 
v. City of San Francisco , 9 Cal. 467.) 

127. In a suit against a corporation, the summons 
must be served on one of the officers or agents named 
in the Practice Act. Aiken v. Quartz 1lock Co., 6 Cal. 
186.) 

128. Service on a party in possession of property, 
who does not appear to be one of the officers named, 
will not entitle the plaintiff to a judgment by default. 
{Id.) 


Agricultural and Arineral I^ancls. 

129. The Act of April, 1852, “ prescribing the mode 
of maintaining and defending possessory actions on pub¬ 
lic lands in this State,” gives permission to all persons 
to work the mines upon public lands, although they may 
be in the possession of another, for agricultural pur¬ 
poses. {Stoakes v. Barrett, 5 Cal., 36. Clark v. Duval, 
15 Cal., 88.) 

130. The right of the agriculturist to use and enjoy 



46 


public lands must yield to the right of the miner when 
gold is discovered in bis land. ( Tartar v. Spring Creek 
W. M. Co ., 5 Cal., 395. Burdge v. Underwood , 6 
Cal., 45.) 

131. But this does not confer any right upon the 
miner to dig a ditch to convey water to his mining claim 
through land thus occupied. {Id. McClintock v. Bry- 
den , 5 Cal., 97. Fitzgerald v. Urton , 5 Cal., 308.) 

132. The Act of April 25th, 1855, “for the protec¬ 
tion of growing crops and improvements in the mining 
districts of this State,” so far as it purports to give a 
right of entry upon the mineral lands of this State, in 
cases where no such right existed anterior to its passage, 
is invalid. ( Gillan v. Hutchinson , 16 Cal., 153.) 

133. This Act of 1855 seems to proceed upon the 
idea of an absolute and unconditional right in the miner 
to enter upon the possessions of another for mining pur¬ 
poses, and the intention of the act was to limit this 
supposed right and not to give a right of entry in cases 
where no such right previously existed. {Id.) 

134. Miners have no such absolute and unconditional 
right. The true rule is laid down in Smith v. Doe, 15 
Cal., 100. Id. 

135. In ejectment for mineral land, plaintiff averred 
possession of a large tract of land, including the mining 
land in controversy, and that he occupied the land for 
agricultural and mining purposes, without stating that 
any use was made of the particular portion held by de¬ 
fendants. This averment of possession, and also the 
averment of ouster, were insufficiently denied in the 
answer; but the answer averred affirmatively that, at 
the time defendants entered upon the ground in dispute, 
it was a part of the public domain of the United States, 
contained large and valuable deposits of gold, that they 
entered upon and took possession of it for mining pur¬ 
poses, and that they have since held and used it for such 
purposes only. The Court below gave judgment for 
plaintiff on the pleadings: Held, that these affirmative 
averments of defendants being proved, plaintiff could 
not recover without showing such an actual and meri¬ 
torious possession and occupancy, as rendered the inter- 



47 


ference of the defendants unjust and inequitable; that 
he could not recover on the pleadings, because the 
character of his possession did not appear, the complaint 
not averring that this particular portion of the land was 
ever used by plaintiff for any purpose whatever. ( Smith 
v. Doe, 15 Cal. 100.) 

136. The allegation of possession is too broad to de¬ 
feat the rights of a person who has, in good faith, located 
upon public mineral land for the purpose of mining, (it/.) 

137. When a party enters upon mineral land for the 
purpose of mining, he cannot be presumed to be a tres¬ 
passer, for if the land be not private property he has 
the right to enter upon it for that purpose ; and, until 
it is shown that the title has passed from the Govern¬ 
ment, the statutory presumption that it is public land 
applies. (Id.) 

138. Mere entry and possession give no right to the 
exclusive enjoyment of any given quantity of the public 
mineral lands of this State. (Id.) 

139. As a general rule, the public mineral lands of 
this State are open to the occupancy of every person 
who, in good faith, chooses to enter upon them for the 
purpose of mining. (Id.) 

140. But this rule has its limitations, to be fixed by 
the facts of each particular case. Certain possessory 
rights, and rights of property in the mining region, 
though not founded on a valid legal title, will be pro¬ 
tected against the miner—as valuable permanent im¬ 
provements, such as houses, orchards, vineyards, grow¬ 
ing crops, etc. (Id.) 

141. The Government of the United States will 
issue no patent to a preemption claimant upon mineral 
land, who claims the same for agricultural purposes. 
(McClintock v. Bryden , 5 Cal., 99.) 

142. The Government of this State being a Govern¬ 
ment of the people, has, as far as its action has been 
determined, modified the claim to the precious metals by 
the sovereign, and permitted its citizens and others to 
use the public lands for the purpose of extracting the 
most valuable metals from their soil. (7£.) 

143. A person who has settled for agricultural pur¬ 
poses upon any of the mining lands of this State has 


48 


settled upon lands subject to the rights of miners, who 
may proceed in good faith to extract any valuable metal 
there may be found in the lands so occupied by the 
settler, to the least injury of the occupying claimant. 
(Id. 102.) 

144. Miners have a right to dig for gold on the pub¬ 
lic lands. (Irwin v. Phillips , 5 Cal., 143.) 

145. The miner who selects a piece of ground to 
work must take it as he finds it, subject to prior rights, 
which have an equal equity on account of an equal re¬ 
cognition from the sovereign power. (Ib., 147.) 

146. Settlers may occupy public lands and inclose 
the same for their immediate benefit, except in the min¬ 
ing regions, else the entire gold region might have been 
inclosed in large tracts under the pretense of agriculture 
and grazing. (Tartar v. Spring Creek W. 3? M. Co ., 
5 Cal., 398.) 

147. The right to mine for the precious metals can 
only be exercised upon public lands, and, although it 
carries with it the incidents of the right, such as the use 
of wood and water, those incidents also must be of the 
public domain. (Ib.) 

148. The Government of the United States, in the 
face of the notorious occupation of the public lands in 
this State by her citizens—that upon those lands they 
have mined for gold, constructed canals, built saw mills, 
cultivated farms and practiced every mode of industry— 
has asserted no right of ownership to any of the mineral 
lands in the State. (Conger v. Weaver , 6 Cal., 556.) 

149. The right, like digging gold, is a franchise, and 
the attending circumstances raise the presumption of a 
grant from the sovereign of the privilege, and every one 
who wishes to attain it has license from the State to do 
so ; provided , that the prior rights of others are not in¬ 
fringed upon. (Ib.) 

150. In an action by a company of miners to recover 
possession of a mining claim and damages for its deten¬ 
tion, a person who was a member of the company at the 
time of the alleged detention, and who prior to the com¬ 
mencement of the suit, in consideration of unpaid assess¬ 
ments, sold his interest to his copartners in the claim, 


49 


without warranty, is not a competent witness, as lie is 
interested in the damages sought to be recovered. ( Pac¬ 
ker v. Heaton , 9 Cal., 571.) 

151. Mining claims are real estate, within the code 
defining the venue of civil actions. (Watts v. White , 
13 Cal., 324.) 

152. Upon questions as to the occupancy of public 
mineral land, it seems that a transfer of the occupant’s 
right of possession may as well be by simple agreement 
as by deed, the vendee taking possession. (Jackson v. 
F. River and Gibsonville W. Co ., 14 Cal., 22.) 

153. From an early period of our State’s juris¬ 
prudence we have regarded claims to public mineral 
lands as titles. (Merritt v. Judd , 14 Cal., 64.) 

154. A license to work the mines implies a permis¬ 
sion to extract and remove the mineral. Such license 
from an individual owner can be created only by writ¬ 
ing, and from the General Government only by Act of 
Congress. But Congress has adopted no specific action 
on the subject, and has left that matter to be controlled 
by its previous general legislation respecting the public 
domain. The supposed license from the General Govern¬ 
ment consists in its simple forbearance. (Boggs v. Merced 
M. Co ., 14 Cal., 374.) 

155. If the forbearance of the Government were 
entitled to any consideration, as a legal objection to the 
assertion of the title of the Government, it could only 
be so in those cases where it has been accompanied with 
such knowledge on its part, of the working of the mines 
and the removal of the mineral, as to have induced in¬ 
vestigation and action, had this been intended or desired. 
Such knowledge must be affirmatively shown by those 
who assert a license from forbearance. (/6.) 

156. IIow far the right of miners to go upon public 
mineral lands in possession of another, for the purpose 
of mining, must be modified to secure any rights of such 
possessor, reserved. (Ib.) 

157. Neither the Act of 1858, as to the location of 
seminary land, nor the Act of Congress, donating it, al¬ 
lows mineral land to be located. (Ib.) 

158. Miners have a right to enter upon public min- 

3 


50 


oral land, in the occupancy of others, for agricultural 
purposes, and to use the land and water for the extrac¬ 
tion of gold—the use being reasonable, necessary to the 
business of mining, and with just regard to the rights of 
the agriculturist; and this, whether the land is inclosed 
or taken up under the possessory Act. ( Clark v. Duval , 
15 Cal., 88.) 

159. The right so to enter and mine carries with it 
the right to whatever is indispensable for the exercise 
of this mining privilege—as the use of the land and such 
elements of the freehold as water. (/5.) 

1G0. The presumption of a grant from the Govern¬ 
ment of mines, water privileges and the like, is to the 
first appropriator; but such a presumption can have no 
place for consideration against the superior proprietor. 
(Foggs v. Merced M. Co., 14 Cal., 375. Ilenshaw v . 
Clark, 14 Cal., 464.) 

161. The United States, like any other proprietor, 
can only exercise their right to the mineral on private 
property in subordination to such rules and regulations 
as the local sovereign may prescribe. ( Boggs v. Merced 
M Co., 14 Cal., 376.) 

162. The general course of legislation in this State 
authorized the inference of a license from her to the 
miner to enter upon lands and remove the gold, so far as 
the State has any right; but this license is restricted to 
the public lands. (/5.) 

163. The possession of agricultural land is prima 
facie proof of title against a trespasser; but where it is 
shown that the party goes on mineral land to mine, there 
is no presumption that he is a trespasser; and the statu¬ 
tory presumption that it is public land, in the absence 
of proof of title in the person claiming it as agricultural 
land, applies. (Burdgev. Smith, 14 Cal., 383.) 

164. Mining claims are held by possession, but that 
possession is regulated and defined by usage and local 
and conventional rules; and the “actual possession,” 
which is applied to agricultural land, and which is un¬ 
derstood to be a possessio pedis, cannot be required in 
case of a mining claim, in order to give a right of ac¬ 
tion for the invasion of it. (. Atwood v. Fricot, 17 Cal. 
37.) 


51 


1G5. A mining claim must be in some way defined 
as to limits, before the possession of or working upon 
part gives possession to any more than the part so pos¬ 
sessed or worked. But when the claim is defined, and 
the party enters in pursuance of mining rules and cus¬ 
toms, the possession of part is the possession of the 
entire claim. (Id.) 

166. So if a party enters upon a mining claim bona 
fide , under color of title, as under a deed or lease, the 
possession of part as against any one but the true owner 
or prior occupant is the possession of the entire claim 
described by the paper; and this, though the paper did 
not convey the title. A third person could not invade 
the possession of the party taking it under such circum¬ 
stances, and set up, as against him, outstanding title in 
a stranger with which he had no connection. (Id.) 

167. The condition of the possessor in such in¬ 
stances is no worse than that of the occupant of other 
real estate, in which case the principle above stated ap¬ 
plies. But this principle does not touch the case of an 
entry into possession in pursuance of mining rules and 
regulations, as for a forfeiture or abandonment, etc., but 
applies where possession is taken independently of such 
rules. (Id.) 

168. In suit for damages for an entry upon mining 
claims, and for perpetual injunction, etc.: Held , that it 
was error for the Court below to charge the jury that 
if they believed no injury or damage was done by de¬ 
fendants to plaintiffs, they would find for defendants; 
that such charge was calculated to mislead, inasmuch as 
the law presumes damages from a trespass, and under 
the charge, the jury might have decided the case upon 
this want of proof of plaintiff’s damages, instead of ab¬ 
sence of proof of their title. (Id.) 

169. In such case the error being apparent, injury 
from the charge to the jury is presumed, unless re¬ 
spondent affirmatively repels the presumption. (Id.) 

170. Miners have no right to enter upon private 
lands, and subject it to such uses as may be necessary 
to extract the precious metals which it contains, (llen- 
shaw v. Clark, 14 Cal., 460.) 


171. In this State, although the larger portion of 
the mineral lands belong to the United States, yet de¬ 
fendant cannot defeat an action for mining claims, water 
privileges and the like, by showing the paramount title 
of the Government. Our Courts, in determining contro¬ 
versies between parties thus situated, presume a grant 
from the Government to the first appropriator. The 
presumption, though of no avail against the Govern¬ 
ment, is held absolute in such controversies. ( Coryell 
v . Cain , 16 Cal., 573.) 

172. A miner has no right to dig or work within 
the inclosure surrounding a dwelling-house, corral, and 
other improvements of another. ( Burdge v. Underwood , 
6 Cal., 45.) 

176. There is no prohibition against locating school 
land warrants on any of the mineral lands in the State. 

(Nims v. Johnson , 7 Cal., 110.) 

174. A party cannot, under pretense of holding land 
in exclusive occupancy as a town lot, take up and in¬ 
close twelve acres of mineral land in the mining district, 
as against persons who enter afterwards upon the land, 
in good faith, for the purpose of digging gold, and who 
do no injury to the use of the premises as a residence, 
or for carrying on of any commercial or mechanical 
business. (. Martin v. Browner , 11 Cal., 12.) 

175. Where a miner enters upon land in the posses¬ 
sion of another, claiming the right to enter for mining 
purposes, he must justify his entry by showing : 1st, that 
the land is public land ; 2d, that it contains mines or 
minerals; 3d, that he enters for the bona jide purpose 
of mining, and such justification must be affirmatively 
pleaded in the answer, with all the requisite averments 
to show a right under the statute, or by law, to enter. 
(Lentz v. Victor , 17 Cal., 271.) 

176. A party in possession of public mineral land 
is entitled to hold it as against all the world, the Govern¬ 
ment excepted, if the land belong to it—subject only to 
the qualification that, upon land taken up for other than 
mining purposes, a right of entry for such purposes may 
attach. (Id.) 

177. Whether in this case, even if the defense of 


53 


justification as a miner, etc., had been properly set up, 
defendant would have been entitled to enter, not de¬ 
cided. {Id.) 

178. The eleventh section of the Act of March, 
1856, “ for the protection of actual settlers and to quiet 
land titles in this State” does not apply to miners en¬ 
gaged in extracting gold from quartz veins. {Fremont 
v. Seals , 18 Cal., 433.) 


Rights of Miners, etc. 

179. Ejectment for mining ground, the parties being 
owners of claims on opposite sides of the same hill. 
Plaintiffs were an ordinary joint stock company, or com¬ 
mon partnership, and claimed by purchase and transfer 
from the original members of the company. The prac¬ 
tice of the company was to issue to members certificates 
of stock, and those certificates constituted the only evi¬ 
dence of membership recognized by the company, trans¬ 
fers being made by an assignment of the certificates, 
and a notice thereof in the books of the company. On 
the trial, these certificates with the assignments were 
read in evidence by plaintiffs, to show their interest in 
the ground and their right to maintain the action, de¬ 
fendants objecting to them on the ground of irrelevancy, 
and that their execution was not proved : Held, that the 
certificates, etc., were relevant to show possession in 
plaintiffs, but that their execution should have been 
proven. {Pennsylvania Mining Co. v. Owens, lo Cal., 
136.) 

180. In this case the Court instructed the jury: 
1st, that if they found plaintiffs located their claims, as 
now claimed, before the location of defendants’ claim, 
then they should find for plaintiffs; and 2d, if they found 
that defendants never located any claim adjoining plain¬ 
tiffs’ claim, then they should find for plaintiffs: Held, 
that the instructions are wrong, as violating the principle 
that plaintiff must recover on the strength of his own 
title ; that defendants, having been in actual possession 
for a long time, were not required to show anything 



54 


beyond it until a prior and paramount right wa^ shown 
in plaintiffs: that it was not essential to defendants’ pos¬ 
session to show that they had ever formally located their 
claim, in accordance with any mining regulations, or 
that they had or claimed any other mining ground. (Ib.) 

181. In ejectment for an interest in a mining claim, 
the answer being a general denial, defendant cannot de¬ 
feat the action by showing the claim to be partnership 
property. Any rights defendant may have in the pre¬ 
mises, growing out of the partnership, must be asserted 
in equity, particularly as the legal title in this case is 
in the plaintiff. (Lowe v. Alexander , 15 Cal., 29G.) 

182. Where in suit for a mining claim, plaintiff in 
his complaint states the particular facts constituting his 
title, and on that title seeks a recovery, and the answer 
denies such title, plaintiff must prove his title as averred, 
at least in substance, and he cannot, against defendant’s 
objection, recover on another and different title. And 
where plaintiffs were permitted to prove and recover on 
a title other than the one set up, it was error in the 
Court below to refuse a new trial, the motion for which 
was based on affidavit of defendant that he was taken 
by surprise, arising out of the frame of the pleadings, 
and that he could have rebutted plaintiff’s case but for 
this surprise. (Eagan v. Delaney, 1G Cal., 87.) 

183. In an action for a mining claim, when the de¬ 
fendants asked for an instruction to the jury “that if the 
plaintiff had abandoned the claim, and did not intend to 
return and work it before the commencement of the 
suit,” and the Court gave the instruction “subject to the 
seventeenth section of the Statute of Limitations:” 
Held, that the qualification of the instruction was error. 
(Davis v. Butler, G Cal., 511.) 

184. A witness in an action for a mining claim, who 
is in the employ of the party in possession, at fixed wages, 
to be paid from the proceeds of the claim, is not incom¬ 
petent when his pay is not dependent on such proceeds. 
a ive Yankee Co. v. Oregon Co., 7 Cal. 40.) 

185. A writ of injunction will issue to restrain tres¬ 
pass, in entering on a mining claim, and removing aurifer¬ 
ous quartz from it, where the injury threatens to be 


55 


continuous and irreparable. (Merced M. Co. v. Fremont , 
7 Cal. 317.) 

18G. The removal of gold from a mine is taking 
away the entire substance of the estate, and comes 
within that class of trespass in which injunctions are 
universally granted. (Id.) 

187. Although the jurisdiction of mining claims is 
given to Justices’ Courts, yet, if the amount in contro¬ 
versy is above two hundred dollars, the District Court 
has jurisdiction. No statute can deprive the latter Court 
of the jurisdiction confirmed and defined by the Constitu¬ 
tion. (Hicks v. Belly 3 Cal. 224.) 

188. In a suit brought by one of the partners in a 
mining company against the company to recover his 
share, which had been sold for an alleged non-payment 
of an assessment, and also to recover the sum of his 
proportionate share of the gold taken out by the said 
company, the District Court has jurisdiction. (Schupler 
v. Evans , 4 Cal. 212.) 

189. In a controversy between two mining com¬ 
panies it was competent to prove the execution of certain 
receipts for water purchased by the plaintiffs, as tending 
to show the existence of the company, and that it had 
actually located and was in operation at the time the 
receipts purport to be signed. (Lone Star Co. v. West 
Point Co., o Cal. 447.) 

190. Where the complaint in an action to recover 
possession of a mining claim in a Justice’s Court, con¬ 
tains an allegation of injury done and a prayer for 
damages, the latter should be disregarded or stricken 
out, and the plaintiff be allowed to try his right to the 
claim. ( Van Ettcn v. Jilson, G Cal. 19.) 

191. Justices of the Peace have no jurisdiction in 
actions to recover damages in a sum over two hundred 
dollars, for injury to a mining claim, or for its detention. 
( Van Etten v. Jilson, G Cal. 19; Small v. Gwinn , G 
Cal. 449 ; Freeman v. Powers , 7 Cal. 105.) 

192. Where a mining company, not incorporated, 
forms a trading copartnership with an individual under 
a firm name, each member of the mining company is a 
member of the firm. (Rich v. Davis , G Cal. 1G3.) 


56 


193. Where one of the mining company acted as 
salesman of the firm, it cannot be pretended that he 
was a dormant partner whose acts would not bind the 
firm. (/5.) 

194. Where parties conveyed to H. one-third interest 
in the lead, by deed purporting to convey in the fee 
simple absolute, and subsequently acquired another title: 
Held , that such subsequent acquisition inured to H/s 
benefit. ( Hitchens v . Nougues, 11 Cal. 28.) 

195. The mere fact that the judgment debtor (against 
whom execution had been issued) was found upon the 
mining ground of plaintiff', did not justify the Sheriff 
who had the execution in going on the ground and 
digging up the soil and taking the gold it contained. 
{Rowe v. Bradley , 12 Cal. 230.) 

196. A bill of sale of a mining claim is sufficiently 
proven when the handwriting of the subscribing witness, 
who is absent from the State, and the execution by the 
vendor are proven. {Jackson v. Feather River Water 
Co., 14 Cal. 22.) 

197. A steam engine and boiler, fastened to a frame 
of timber, bedded in the ground of a quartz ledge suffi¬ 
cient to make it level, with a roof or shed to protect the 
machinery, and used for the purpose of working the 
ledge, are so annexed to the freehold as to become a 
fixture. {Merritt v. Judd, 14 Cal. 59.) 

198. In an action of trespass for entering upon the 
mining ground of plaintiff, the vendor of plaintiff is a 
competent witness, although part of the purchase money 
is still due him. {Rowe v. Bradley, 12 Cal. 226.) 

199. Where premises containing deposits of gold 
are held under a patent from the United States, an in¬ 
junction lies to prevent miners from excavating ditches, 
digging up the soil, and flooding a portion of the premi¬ 
ses, for the purpose of extracting the gold. {Henshaio 
v. Clark, 14 Cal., 460.) 

200. Such injuries are calculated to destroy the en¬ 
tire value of the land for all useful purposes. They 
are irreparable. {Id.) 

201. Where the owner of a mining claim contracts, 
verbally, with J. for working it, and agrees to pay him 


57 


a certain sum out of the proceeds, and J. goes into pos¬ 
session, and while he is working it, the owner sells it to 
a third party, who takes without notice of J.’s contract, 
his claim is not liable to J.’s contract. ( Jenkins v. Red¬ 
ding , 8 Cal. 598.) 

202. Defendant killed deceased while in the act of 
injuring a mining claim. On the trial defendant offered 
to show that he was the owner, and in the lawful posses- * 
sion of said claim at the time of the killing. The Court 
refused testimony to this point: Held , that defendant had 
a right to prove his ownership of the claim for the pur¬ 
pose of showing his mental condition, the motives which 
prompted his action, and determining the character of 
tiie offense; that the ownership was part of the res 
gestce, and should have been admitted, subject to instruc¬ 
tions of the Court as to its legal effect, though when 
admitted it may not have amounted to a justification. 

( People v. Costello , 15 Cal. 350.) 

203. Where two mining companies agree upon a 
boundary line between their claims, and subsequently 
other parties purchase the several interests of the two 
companies, with a knowledge of the boundary so fixed, 
both parties are concluded by it, and estopped from de¬ 
nying it. {Me Gee v. Stone , 9 Cal. 600.) 

204. The fact that such line was fixed by a mistake 
as to the true boundaries makes no difference. (7c?*) 

205. Parties taking possession of a quartz lead 
under an agreement, cannot retain possession and refuse 
compliance with their agreement, {Hutchins v. Nougues, 
11 Cal. 28.) 

206. In an action for damages for diversion of water 
from plaintiff’s ditch, the deposition of one of the own¬ 
ers in the ditch was taken by plaintiff, and subsequently, 
and before the trial, the witness conveyed his interest to 
plaintiff: Held , that such conveyance did not pass the 
witness’ right to the damages, and hence he was incom¬ 
petent as a witness. {Kimball v. Gearheart , 12 Cal. 
27.) 

207. The purchaser of a mining claim can only ac¬ 
quire such right or title as his vendor had at the time of 
sale, {Waring v. Crow, 11 Cal. 366.) 

3 * 


208. Where the Court instructed the jury, that, 
“ where an abandonment is sought to be established by 
the act of the party, the intention alone governs; and, 
if such party leave a mining claim, with the intention 
not to return, his abandonment is as complete, if it ex¬ 
ist for a minute or a second, as though it continued for 
years; but if he left with the intention of returning, he 
might do so at any time within five years: 'provided , 
there was no rule, usage or custom of miners, of such 
notorious character as to raise h presumption of an in¬ 
tention to abandonthe question of abandonment was 
fairly left to the jury. (Id.) 

209. Where a party’s rights to a mining claim are 
fixed by the rules of property, which are a part of the 
general law of the land, they cannot be divested by any 
mere neighborhood custom or regulation. (Id.) 

210. In an action of ejectment to recover an undi¬ 
vided interest in a mining claim, it. is not necessary to 
make parties defendants who are in possession holding 
other undivided interests, and who claim no right to the 
interest sued for. (Id.) 

211. Possession of one partner or tenant in common 
of a mining claim is the possession of all. (Ib.) 

212. The interest of a miner in his mining claim, is 
property, and not having been exempted by law may 
be taken and sold under execution. (McKeon v. Bisbee , 
9 Cal. 137.) 

213. The pay dirt and tailings of a miner, which are 
the productions of his labor, are his property. (Jones 
v. Jackson , 9 Cal. 237.) 

214. To suffer the tailings to flow where they list, 
without confinement within proper limits, is conclusive 
evidence of abandonment, unless there is some pecu¬ 
liarity in the locality which render it unnecessary to 
raise any artificial obstructions. (Id.) 

215. Where a place of deposit is necessary for 
working a mine, the miner has the right to appropriate 
such ground as may be necessary for this purpose, pro¬ 
vided, he does not interfere with existing rights. His 
intention to appropriate such ground must be clearly 
manifested by outward acts. Mere posting notices is 


59 


not sufficient. lie must claim the place of deposit as 
such, or as a mining claim. (Id.) 

21G. If the tailings are allowed to mingle with those 
of other miners, this would not give a stranger a right 
to the mixed mass. (Id.) 

217. Where tailings are allowed to flow upon the 
ground of another, he is entitled to them. (Id.) 

218. The mines of gold and silver in the public 
lands are as much the property of the State, by virtue 
of her sovereignty, as are similar mines in the hands of 
private proprietors. (Hicks v. Bell, 3 Cal., 227.) 

219. The State, therefore, has the sole right to 
authorize the mines to be worked, to pass laws for their 
regulation, to license miners, and affix such terms and 
conditions as she may deem proper to the freedom of 
their use. (Lb.) 

220. In an action of ejectment to recover mining 
claims, an answer to the complaint which avers “that 
any rights plaintiff may have had, etc., have been for¬ 
feited by a non-compliance with the rules of the miners 
in the diggings embracing the claims in dispute, prior 
to defendant’s entry,” is insufficient in not setting forth 
the rules, customs, etc. (Butch Flat Co. v. Moony, 12 
Cal. 534.) 


Ditches, Canals, River Claims, etc. 

221. Where plaintiff’s mining claim was overflowed 
by means of a dam erected by the defendants, the Court 
ordered a reduction of the dam, so as to prevent the 
overflow, or, if necessary, an entire abatement. ( Ram¬ 
say v. Chandler, 3 Cal. 93.) 

222. The obstruction of the water in a ravine is 
common injury to many at work on the ravine, who had 
by the necessary implication of the laws of the State 
which relates to mines and miners, a species of property 
in their mining grounds which they had a right to pro¬ 
tect by peaceably abating the nuisance. (Stiles v. Laird , 
5 Cal. 122.) 

223. Rights of miners are to be protected in the 
possession of their selected localities, and the rights ot 



60 


those who by prior appropriation have taken the waters 
from their natural beds, and by costly works to supply 
the necessity of gold diggers, and without which the 
most important interest in the mineral region would re¬ 
main undeveloped. (Irwin v. Phillips, 5 Cal. 146.) 

224. AYhere the plaintiff sued for an injury to his 
mining claim, by the breaking of defendant’s canal, 
which was constructed prior to the location of plaintiff’s 
claim, neither party claiming ownership of the soil, and 
no negligence in fact being shown, other than that which 
the law would presume from the breaking of the ditch: 
Held, that the rights of the parties were acquired at the 
dates of their respective locations, and the rule of “com¬ 
ing to a nuisance” may be applied. ( Tenney v. Miners ’ 
Ditch Co ., 7 Cal. 339.) 

225. There is no doubt that ditch owners would be 
responsible for wanton injuries or gross negligence, but 
they are not liable for a mere accidental injury, where 
no negligence is shown, to a miner locating along the 
line subsequent to the construction of the ditch. {Ib. 
340.) 

226. The first appropriator of water for mining pur¬ 
poses is entitled to have the water flow without material 
interruption in its natural channel. {Bear River and 
Auburn W. and M. Co. v. New York Mining Co., 8 
Cal. 333.) 

227. Plaintiffs owned certain mining claims and 
quartz leads on the banks of a stream above the mill 
and dam of defendant. Defendant commenced raising 
his dam two feet higher. Plaintiffs brought suit against 
defendant, alleging that the addition of two feet to de¬ 
fendant’s dam was a nuisance, and would back the water 
on to plaintiffs’ claims and thus prevent them from 
working them, and would also destroy their water priv¬ 
ilege for a quartz mill which they intended to construct: 
Held , that the action was premature, and that the de¬ 
murrer to the complaint, on the ground that the com¬ 
plaint did not state facts sufficient to constitute a cause v 
of action, was properly sustained. ( Harvey v. Chilton, 
11 Cal. 120.) 

228. In an action for injuries to a mining claim, a 


61 


claim for damages to the plaintiff by reason of the 
breaking away of the defendant’s dam and the conse¬ 
quent washing away of the pay dirt of the plaintiff, may 
properly be joined with a claim for damages in the pre¬ 
venting plaintiff from working his claim. (Frayler v. 
Sears U. W. Co ., 12 Cal. 558.) 

229. The law will not presume an abandonment of 
property in a dam and ditch for mining purposes from 
the lapse of time. (Patridge v. Ale Kinney, 10 Cal. 183.) 

230. Plaintiffs owned certain mining claims in the 
bed or channel of a stream. Defendants owned claims 
in the same stream above and adjoining the claims of 
plaintiffs, defendants’ claims being located first. Defend¬ 
ants constructed a fume, running from their own claims 
to and upon plaintiffs’ claims, and through this flume a 
large quantity of tailings was deposited on plaintiffs’ 
claims, to their great damage. The flume was con¬ 
structed for the purpose of working defendants’ claims; 
was proper and necessary for that purpose, and the 
deposit of tailings was occasioned by the ordinary work¬ 
ing of the claims. The Court instructed the jury, that 
the person first locating a claim in the bed of a stream 
is entitled to the channel below as an outlet, and that 
when such outlet from the usual mining operations above 
becomes obstructed, he may open the same; and if he 
can do so by no other means, may construct a flume 
down the channel as far as necessary, and as far as it 
can be constructed without considerable damage to 
claims subsequently located: Held, that the instruction 
was wrong; that the defendants were not entitled, as 
matte]’ of strict legal right, to an easement upon plain¬ 
tiffs’ claims for the purpose mentioned ; that the doctrine 
that, under certain circumstances, one person may have 
a right of way by necessity over the land of another, 
does not apply to this case; and further, that this Court 
does not recognize the doctrine that one person can go 
on the land of another and erect thereon buildings or 
other structures; and that mining claims stand on the 
same footing in this respect as other property; that, if 
the acts of defendants were authorized by any local 
custom or regulation, its existence should have been 


62 


averred and proved. (. Esmond v. Chew , 15 Cal. 

142.) 

231. Each person mining in the same stream is en¬ 
titled to use, in a proper and reasonable manner, both 
the channel of the stream and the water flowing therein. 
Where, from the situation of different claims, the work¬ 
ing of some will necessarily result in injury to others, 
if the injury be the natural and necessary consequence 
of the exercise of this right, it will be damnum absque 
injuria , and will furnish no cause of action to the party 
injured. The reasonableness in the use is a question for 
the jury, to be determined by them upon the facts and 
circumstances of each particular case. (/&.) 

232. A prior locator of a mining claim on the banks 
of a stream has the right to the use of the bed of the 
stream for flinning or working; and a subsequent erec¬ 
tion, which will hinder the working of the claim, is an 
encroachment upon his rights, and the subject of damages. 
(a Sims v. Smith , 7 Cal. 148.) 

233. Where parties have acquired the prior right 
to the use of the water of a stream by the commence¬ 
ment and partial completion of a ditch and flume, they 
have the right to use so much of the waters of the stream 
as are necessary to preserve their flume from injury, 
while in the process of const! uction. ( Weaver v. Conger , 
10 Cal. 233.) 

234. In an action for diverting water from plaintiff’s 
ditch, where both parties claimed, in part, the water of 
the same stream: Held , that defendant is not liable for 
any deficiency of water in plaintiff's ditch, unless he 
was diverting from the stream more water than he was 
entitled to at the time. ( Brown v. Smith , 10 Cal. 508.) 

235. The owners of a ditch are bound to use that 
degree of care and caution in its construction and man¬ 
agement, to prevent injury to others, which men of 
ordinary prudence would use when the risk was their 
own. (I Volf v. St. Louis W. Co., 10 Cal. 541.) 

236. The failure of one partner in a ditch to pay 
his proportion of expenses of the concern, does not for¬ 
feit his right in the common property. (. Kimball v. 
Gearheart , 12 Cal. 27.) 


68 


237. Where parties projecting a ditch to convey 
water, give notice to the world of their intention to dig 
such ditcli and appropriate such water, in the usual 
manner, and designate the line of such ditch by the usual 
marks and indications, and pursue the work with a 
reasonable degree of diligence until the same is com¬ 
pleted, they are entitled to such water as against all 
persons subsequently claiming it. (Id.) 

238. Surveys, notices, stakes, and blazing of trees, 
followed by work and labor, without abandonment, will 
in every case where the work is completed, give title to 
unclaimed water on public lands over after-claimants. 

(Id.) ■ 

239. Plaintiffs are owners of mining claims located 
in the bed of a creek, and defendants own claims situated 
on a hill in the vicinity. The refuse matter washed from 
defendants’ claims is deposited on plaintiffs’ claims, to 
such an extent as to render the working of them im¬ 
practicable. Plaintiffs’ claims were first located, and 
are valuable only for the gold they contain : Held , that 
plaintiffs are entitled to damages for the injury done 
their claims by such deposit, and to an injunction against 
the same in future; that the enjoyment of their claims 
lies in the use necessary to obtain the gold, and that to 
interrupt this use is to take away the opportunity to en¬ 
joy, and defeat the object for which they were located 
and taken possession of. (Loyan v. Driscoll, 19 Cal. 623.) 

240. The rule qui prior est in tempore potior est in 
jure applies in such cases. (7c?.) 

241. The position that, so long as the use made by 
defendants of their claims is not in itself unlawful, plain¬ 
tiffs cannot complain of its effect upon them, is untenable, 
because no use is lawful which precludes plaintiffs from 
the enjoyment of their rights. (Id.) 


Mining Itules, Customs, etc. 

242. The question as to the necessity of recording 
mining claims, reserved. (Partndye v. McKinney , 13 
Cal. 159.) 

243. A copy of a notice posted on a mining claim to 



show its extent is not admissible in evidence, if the notice 
itself be attainable. Such evidence is secondary, and 
is admissible only upon the terms which control its intro¬ 
duction in other cases. ( Lombardo v. Ferguson, 15 
Cal. 373.) 

244. Actual possession of a portion of a mining 
claim, according to the custom of miners, in a given 
locality in the Yuba River, extends by construction to the 
limits of the claim held in accordance with such customs. 
(Ilicks v. Bell , 3 Cal. 224.) 

245. The code permits evidence of the customs 
established in mining claims, which implies a permission 
on the part of the State to the miner to seek wherever 
lie choose in the mines for the precious metals, and ex¬ 
tends to him whatever right the State might have to the 
mineral when found. (Me Glintock v. Bryden , 5 Cal. 100.) 

24G. The first locator of a quartz ledge is not con¬ 
fined simply to the solid quartz actually embodied in 
the bed rock, but is entitled to the loose quartz rock and 
decomposed material which were once a part of the 
ledge and are now detached, so far as the general form¬ 
ation of the ledge can be traced. (Brown v. ’40 and 
’5G Quartz Mining Co., 15 Cal. 160.) 

247. The right of the quartz miner comes from his 
appropriation, and whenever his claim is defined there 
is no reason in the nature of things why the appropria¬ 
tion may not as well take effect upon quartz in a de¬ 
composed state as any other sort, or why the condition 
to which natural causes may have reduced the rock, 
should give character to the title of the locator. (lb.) 

248. The only question of fact in this case being, 
whether the quartz rock—parted or not from its original 
connection—was a portion of the same quartz ledge or 
claim taken up by defendant; it was not important 
whether the rock was upon or beneath the surface, or 
what its condition, provided it were a part of such ledge 
or claim. (1 b.) 

249. In cases of this kind, the custom of miners is 
entitled to great, if not controlling weight. (75.) 

250. Under certain circumstances, proof of the cus¬ 
tom in other districts may be proper—at least, this Court 



65 


is not satisfied to the contrary. But in this case, the 
admission of such testimony, if error, was immaterial, 
as the case was tried by the Court, and the judgment 
placed on independent ground, upon which it can stand. 
(lb.) 

251. In the absence of mining regulations, the fact 
that a party has located a claim bounded by another, 
raises no presumption that the last located claim corres¬ 
ponds in size, or in the direction of its lines, with the 
former. (Live Yankee Co. v. Oregon Co ., 7 Cal. 40.) 

252. Mining laws, when introduced in evidence, are 
to be construed by the Court, and the question whether 
by virtue of such laws a forfeiture had occurred, is a 
question of law, and cannot be properly submitted to a 
jury. (Fairbank v. Woodhouse, 6 Cal. 433.) 

253. Work done outside of a mining claim, with 
intent to work the claim, to be considered by intend¬ 
ment as work done on the claim, must have direct rela¬ 
tion and be in reasonable proximity to it. (McGarritg 
v. Hyington , 12 Cal. 432.) 

254. Where the regulations of a mining locality 
require that every claim shall be worked two days in 
every ten, the efforts of the owner of a claim to pro¬ 
cure machinery for working the claim are, by fair in¬ 
tendment, to be considered as work done on the claim. 
So, also, is working on adjoining land in constructing 
a drain to enable the owners to work the claim. (Pack¬ 
er v. Heaton , 9 Cal. 5G8.) 

255. One party may locate ground in the mineral 
districts for fluming purposes, and another party may 
locate the same ground for mining purposes; the two 
locations will not conflict, being for different purposes. 
( O'Keiffe v. Cunningham, 9 Cal. 589.) 

256. A party may take up a claim for mining pur¬ 
poses, that has been, and still is, used as a place of de¬ 
posit for tailings by another, and his mining right may 
be subject to this prior right of deposit; but this claim 
of the miner will not be subject to those who come after 
him. (Cd.) 

257. A misdescription in the notice of the claimant 
to a quartz lead, posted up near the premises, in pursu- 


66 


ance of the mining laws of the district in which the lead 
is situated, and where the lead is under ground and un¬ 
developed, will not vitiate the claim. ( Johnson v. Paris , 
10 Cal. 446.) 

258. A hook in which claims are recorded by reso¬ 
lution of the miners of a district, may be admitted in 
evidence in an ejectment suit for a mining claim. {Mc~ 
Garrity v. Byington , 12 Cal. 426.) 

259. In the absence of any custom or local regula¬ 
tion, the right of property, once attached in a mining 
claim, does not depend upon mere diligence in working 
such claim. The failure to comply with any one mining 
regulation, is not a forfeiture. {Id.') 

260. The mode of acquiring and the extent of a 
mining claim must be in conformity to the local rules of 
miners; but quere , can the local regulations alter the 
general rules of holding property ? {Dutch Flat JV. Co. 
v. Mooney , 12 Cal. 534.) 

261. In suit for mining claims, the Court permitted 
defendants to introduce in evidence the mining rules of 
the district, though adopted after the rights of plaintiffs 
had attached: Held , that admitting plaintiff’s rights 
could not be effected by such rules, still, as defendants 
claimed under them, they were competent evidence to 
determine the nature and extent of defendant’s claim— 
the effect of such rules upon pre-existing rights being 
sufficiently guarded by instructions of the Court. {Roach 
v. Gray , 16' Cal. 383.) 

262. The quantity of ground a miner can claim by 
location or prior appropriation for mining purposes may 
be limited by the mining rules of the district. {Prosser 
v. Parks , 18 Cal. 47.) 

263. The mining rules of the district cannot limit 
the quantity of ground or the number of claims a party 
may acquire by purchase. {Id.) 

264. In suit for mining claims, the Court charged 
the jury, in effect, that possession taken of a mining 
claim, without reference to mining rules, was sufficient, 
as against one entering by no better title, to maintain 
the action ; and further, that this possession need not be 
evidenced by actual inclosure, but “ if the ground was 


67 


included within distinct, visible, and notorious bounda¬ 
ries, and if plaintiffs were working a portion of the 
ground within those boundaries,” this was enough, 
against one entering without title: Held, that the in¬ 
struction was right; that though the regular and usual 
way of obtaining possession of mining claims be accord¬ 
ing to the mining regulations of the vicinage, still, a 
possession not so taken is good against one taking pos¬ 
session in the same way; and that the actual prior pos¬ 
session of the first occupant would be better than the 
subsequent possession of the last. (.English v. Johnson , 
17 Cal. 107.) 

265. No acts are required as evidence of the pos¬ 
session of a mining claim, other than those usually ex¬ 
ercised by the owners of such claims. A miner is not 
expected to reside on his claim, nor build on it, nor cul¬ 
tivate it, nor inclose it. He may be in possession by 
himself, or by his agents or servants. (Id.) 

2GG. Going on the lead to work it, or even work 
done in proximity and in direct relation to the claim, 
for the purpose of extracting or preparing to extract 
minerals from it—as, for example, starting a tunnel a 
considerable distance off, to run into the claim—would 
be a possession of the claim within the meaning of the 
rule. (Id.) 

267. As to the extent of a miner’s possession where 
he enters under a written claim or color of title, his pos¬ 
session, except as against the true owner of prior occu¬ 
pant, is good to the extent of the whole limits described 
in the paper, though the possession be only of a part of 
the claim. (Id.) 

2G8. Where a claim is distinctly defined by physical 
marks, possession taken for mining purposes embraces 
the whole claim thus characterized, though the actual 
occupancy or work done be only on or of a part, and 
though the party does not enter in accordance with 
mining rules, or under a paper title. The rule which 
applies to agricultural lands, and holds to a more strict 
interpretation of a possessio pedis , does not apply to 
such a case. (Id.) 

269. The nature of the possession requisite, when 


08 


applied to different kinds of property, as agricultural 
lands, town lots covered with water, large districts where 
there is no timber, etc., suggested. (Id.) 

270. Fences are not requisite around mining claims. 
The physical marks upon and around the claim are 
sufficient to notify every one of the possession and claim 
of the possessor; and by common understanding, the 
going upon a claim to work it is an appropriation of the 
entire claim, especially if that claim can be appropriated 
to that extent by location by one man. (Id.) 

271. Query: Whether, if several distinct claims 
have been consolidated into one, and the rules of the 
locality allow but one claim to be taken by one man, 
and after this consolidation a person should go upon the 
consolidated claim to work, without authority from the 
owner, his possession might not be referred to the par¬ 
ticular claim upon which he entered, and not to the 
whole tract; and whether the question might not be one 
of intent; and whether the presumption would not be, 
that he meant to appropriate only the quantity allowed 
by the rules of the vicinage? (Id.) 

272. In the absence of any mining rule declaring 
that a failure to record a claim avoids the entry or 
claim, a party may take actual possession of mineral 
land, though in taking possession he do not observe the 
requirements as to registry, and the like acts prescribed 
by the local laws. But if he take more land than these 
rules allow, this would not give him title to the excess 
against any one subsequently entering, who complies 
with the laws, and takes up such excess in accordance 
with them. (Id.) 

27 3. Miners have the power to prescribe the rules 
governing the acquisition and divestiture of titles to this 
class of claims and their extent, subject only to the gen¬ 
eral laws of the State. (Id.) 

274. Where plaintiff claims, under purchase and lo¬ 
cation, a small tract of mineral land, with demarked 
limits, of which he is in possession, and there is no proof 
on the trial that the extent of his claim is opposed to 
the local rules, the presumption is, that his possession is 
rightful, and not wrongful. (Id.) 


69 


275. In such case, the plaintiff need not show, in 
the first instance, that he was in possession in accord¬ 
ance with the local laws; but may (as a vendee under 
a deed may as to other land) make a prima facie case, 
upon possession ; and this is enough until the defendant 
shows that the possession is wrongful, because in viola¬ 
tion of rules which justify him in going upon the prem¬ 
ises and working them. (Id.) 

27G. In this case, held, that defendant could not 
offer in evidence an extract or a single clause of a book 
containing the mining rules, but must offer the whole 
book—the book being in Court and in possession of de¬ 
fendant, and it being necessary to a fair understanding 
of any one part, that the whole should be inspected. 

(Id.) 

277. Plaintiffs here—three in number—claiming by 
purchase and location, defendant offered to show that 
one of the plaintiffs had admitted, years ago, that he 
had more than five claims : Held , that the evidence was 
properly ruled out, its relevancy not being shown. (Id.) 

278. Where the owners of a mining claim, pre¬ 
viously located by themselves and others, became incor¬ 
porated, and placed the corporation thus formed in pos¬ 
session of the claim as their successor in interest, with 
the evident intention that whatever rights the unincor¬ 
porated individuals had, should pass to the corporation: 
Held , that the title to the claim passed to the corpora¬ 
tion as effectually as it would if the transfer had been 
accompanied by a conveyance in writing. (Table M. T. 
Co. v. Stranahan , 20 Cal. 108.) 

270. Possession of mining ground acquired by an 
entry under a claim for mining purposes, upon a tract, 
the bounds of which are distinctly defined by physical 
marks, accompanied with actual occupancy of a part of 
the tract, is sufficient to enable the possessor to maintain 
ejectment for the entire claim, although such acts of ap¬ 
propriation are not done in accordance with any local 
mining rule. (Id.) 

280. The exclusion, therefore, of evidence tending 
to prove a possession of this character, is error. (Id.) 

281. Although mining ground may be located in the 


70 


absence of local regulations, yet the extent of such lo¬ 
cation is not without limit. The quantity taken must 
be reasonable; and whether it be so or not, will be de¬ 
termined in such cases by the general usages and cus¬ 
toms prevailing upon the subject. If an unreasonable 
quantity be included within the boundaries, the location 
will not be effectual for any purpose, and possession un¬ 
der it will only extend to the ground actually occupied. 
(id.) 

282. Upon the question of reasonableness of the 
extent of a mining location, a general custom, whether 
existing anterior to the location or not, may be given 
in evidence; but a local rule stands upon a different 
footing, and cannot be introduced to effect the validity 
of a claim acquired previous to its establishment. (Id.) 

283. So, where G., McB. and others verbally agreed 
to prospect for quartz, and to be equally interested in 
claims taken up, and McB. discovered a lead or claim 
and located it by putting up a written notice with G.’s 
name and others on it, appropriating the lead: Held, 
that G.’s right attached by these proceedings, and could 
not be divested by the mere act of McB. in taking down 
the notice and putting up other notices with other names. 
(Gore v. McBrayer , 18 Cal. 582.) 

284. After the notice was put up, G. became a ten¬ 
ant in common of the mine, and not a partner, and could 
bring an action to vindicate his title against McB. or any 
one who excluded him or denied his right. (Id.) 

285. The usual mode of taking up mining claims is 
to put upon the claim a written notice that the party 
has located it; and this taking up and giving notice may 
be done by a party personally, or by any one for him, 
or with his assent or approval; and whenever the appro¬ 
priation is made by an agent having authority from a 
principal to make it, the act is complete, and the title 
vests in the principal, and the agent by his mere act 
cannot subsequently divest it. (Id.) 

28G. The fact that mining laws and regulations were 
passed on a different day from that advertised for a meet¬ 
ing of miners, does not invalidate them. Courts will not 
inquire into the regularity of the modes in which these 


71 


local legislatures or primary assemblages act. They 
must be the judges of their own proceedings. It is sutli- 
cient that the miners agree—whether in public meeting 
or after due notice—upon their local laws, and that tl ese 
are recognized as the rules of the vicinage, unless fraud 
be shown, or other like cause for rejecting the laws. (Id.) 


Conveyance. 

287. A bill of sale, not under seal, is insufficient to 
convey a mining claim. (McCarron v. O'Connell. 7 
Cal. 152.) 

[The Act of April 13, I860, p. 22 permits bills of sale 
of mining claims, without seal, to pass title.] 

288. A bill of sale for a mining claim, not under 
seal, and without warranty, which only purports to con¬ 
vey the right and title of the vendor, will not pass the 
title, although the vendor is in possession at the time, if 
such possession is without title. It only passes an equity 
which is subject to the legal title or a superior equity. 
( Clark v. McElvy , 11 Cal. 154.) 

289. A written conveyance is not necessary to the 
transfer of a mining claim. (Table Mountain Tunnel 
Co. v. Stranahan , 20 Cal. 198.) 

290. The right to mining ground, acquired by ap¬ 
propriation, rests upon possession only; and rights of 
this character, not amounting to an interest in the land, 
are not within the statute of frauds, and no conveyance 
other than a transfer of possession is necessary to pass 
them. (Id.) 

291. The owner of a mining claim has, in effect, a 
good vested title to the property, until divested by the 
higher right of his superior proprietor. lie is entitled to 
all the remedies for the protection of his mine that he 
could claim if he were the owner, against all the world, 
except the true owner. (Merced M. Co. v. Fremont , 
7 Cal. 317.) 

292. A writing is not necessary to vest or divest 
title on taking up a mining claim. The right of the 
miner comes from the mere appropriation of the claim 
made in accordance with the mining rules and customs 



72 


of the vicinage. The title is in the Government, and 
the right to mine is by its permission to the appropriator. 
(Gore v. Me Bray er , 18 Cal. 582.) 

293. The statute of frauds, requiring an instrument 
in writing to create an interest in land, does not apply 
to the taking up of mining claims. A mere verbal 
authority to one man to take up a claim for another is 
sufficient. No title is divested out of the Government, 
but a right of entry given under it. ( Id .) 


Taxation. 

294. The State can levy a poll tax to such extent 
as it may deem expedient upon (ill persons engaged in 
mining upon public lands, and there is nothing in the 
Constitution of the United States which deprives this 
State of the power of imposing it. ( People v. Naglee , 
1 Cal. 238.) 

295. Where the State passed a law taxing foreign 
miners until such time as Congress shall by law assume 
the regulation of the mines, it is not contradictory or 
repugnant to the power of Congress. ( Id . 240.) 

296. Aliens cannot be said to have any property to 
enjoy in the mineral public lands by which the Constitu¬ 
tion of the State would guarantee them against taxation 
for working or extracting the metals therefrom. {Id. 252.) 

297. A tax upon aliens for working the public lands, 
and extracting therefrom the precious metals, does not 
require any exaction ; the alien may pay or not, depend¬ 
ing upon his option whether he will or will not engage 
in mining operations, and becomes a license fee. {Id. 253.) 

298. When a foreign miner, subject to a license tax, 
was employed by one of a partnership to work in the 
mines which were the partnership’s property: Held , that 
the employer, and not the partnership, was liable for the 
tax. {Meyer v. Larkin , 3 Cal. 403.) 

299. Where the tax collector levied on the property 
of the partnership for the tax due by the foreigner thus 
employed, and sold the whole claim and dispossessed 
the plaintiff (one of the partners) : Held, that he was 



78 


guilty of a trespass for which the action was properly 
brought. {Id.) 

300. The interest of the occupant of a mining claim 
is property, and is liable to taxation. (California v. 
Moore , 12 Cal. 56.) 

301. The Legislature having expressly exempted 
mining claims from the operation of the Revenue Act, 
it cannot be presumed that it intended indirectly to tax 
them by levying a tax on the price paid for them. 
Money invested in purchasing and opening mining 
claims is not within that portion of the Revenue Act 
which provides for taxing “all capital loaned, invested 
or employed in any trade or business whatsoever. {Id.) 

302. The fact that the parties in possession of a gold 
mine are foreigners, and have obtained no license, affords 
no apology for trespassers. The State alone can enforce 
the law prohibiting foreigners from working in the mines 
without a license. {Mitchell v. Hagood , 6 Cal. 148.) 

4 







APPENDIX. 


FORMS. 








CERTIFICATE OF INCORPORATION. 


State of California, ) 

County of.) 

We, the undersigned, being desirous of forming a corporation for 
the purpose of mining, do hereby certify and declare as follows, viz.: 

First .—That we do hereby form such corporation under and in 
pursuance of the laws of the State of California. 

Second .—That said corporation shall be known by the name of 
the “.Mining Company.” 

Third .—That the object of said corporation shall be to carry on 

and conduct the business of mining on a certain vein or lode. 

situate and recorded in the.Mining District,. 

County, State (or Territory) of. 

Fourth .—That the amount of the capital stock of said corporation 


shall be.dollars, which shall be divided into 

shares of.dollars each. 


Fifth .—That said corporation shall exist for the term of.. 

years. 

Sixth .—That the principal place of business of said corporation 

shall be located in the.of., County of., 

State of California. 

Seventh .—That the number of Trustees who shall manage the con¬ 
cerns of said corporation shall be., and the names of the 

Trustees who shall manage its concerns for the first three months 
are. 

In witness whereof, we have hereunto set our hands and seals, 
this.day of. a. d. 18G... 


[Names.] 








































































TRUST DEED. 


This Indenture, made this.day of.in the 

year of our Lord one thousand eight hundred .and sixty-. 

between the undersigned, parties of the first part, and__ 

Trustees of the.Mining Company, parties of the second 

part: Witnessetk, that whereas , the said... .Mining Com¬ 

pany has been duly incorporated under the laws of the State of Cali¬ 
fornia; and whereas , the said parties of the first part, the present 
owners of the mining ground or lode hereinafter descril>ed, are desir¬ 
ous of transferring to said corporation all the right, title, and interest 
which they and each of them have or claim therein. 

Now, therefore , know all men by these presents, that the under¬ 
signed, parties of the first part hereto, and each of them, for and in 
consideration of the sum of one dollar to them, jointly and severally, 
in hand paid, at or before the execution and delivery of these pres¬ 
ents, the receipt whereof is hereby acknowledged, and for the 
further consideration of certificates of stock in said..-..Min¬ 

ing Company, hereafter to be issued to them, and each of them, their 
heirs and assigns, in proportion to their several interests as herein¬ 
after mentioned, in conformity with the provisions of an Act of the 
Legislature of the State of California, entitled u An Act to provide 
for the formation of Corporations forcertiiin purposes,” passed April 
14th, 1853, and the several acts amendatory thereof and supplemental 

thereto, and in accordance with the By-Laws of said. 

Mining Company, do hereby grant, bargain, sell, and convey unto 

the said.-.Trustees of 

said.Mining Company, and their successors, all the right, 

title, and interest, possession, claim, and demand, whatsoever, as well 
in law as in equity, of said parties of the first part, and each of them, 
of, in, and to all that certain mining ground, or lode, situate, lying, 

and being in.Mining District,.County, State 

(or Territory) of.known as the.. 

Together with all the dips, spurs, and angles of siiid mining ground. 
















80 


or lode, and all and singular the tenements, hereditaments, appurte¬ 
nances, and privileges thereunto belonging. 

To have and to hold the same, and every part thereof, with the 

appurtenances and privileges thereunto belonging unto the said. 

.Trustees of the said. 

Mining Company, and their successors forever; in trust, nevertheless, 
and to and for the uses and purposes of said Company, as by the laws 
of the State of California and the By-Laws, Rules, and Regulations 
of said Company provided. 

In witness whereof, the said parties of the first part have hereunto 
set their hands and seals the day and year first above written. 


[Feet.] 


[Names.] 


[L.S.] 







BY-LAWS. 


ARTICLE I. 

NAME AND CAPITAL STOCK. 

This Company shall he known as the “.Mining Com¬ 
pany,” and shall have a capital stock of.dollars, which 

shall be divided into.shares of.dollars each. 

ARTICLE II. 

CORPORATE POWERS. 

The corporate powers of this company shall be vested in a Board 

of.Trustees, and the officers of the company shall be a 

President, Secretary, and Treasurer. 

ARTICLE III. 

MEETINGS OF STOCKHOLDERS. 

The annual meeting of stockholders for the election of Trustees 

and transaction of other business, shall be held at.on 

the.of each year. Notice of all meetings of stock¬ 

holders shall be given by publication once a week for four weeks in 

some daily newspaper published in.. or by special 

notice from the Secretary to each stockholder. No meeting of the 
stockholders shall be competent to transact business unless a majority 
of the stock is represented. In case a majority of the stock is not 
represented at the annual meeting, a similar notice shall be published 
or given by the Secretary calling another meeting within thirty days 
thereafter. Each share of stock shall be entitled to one vote, and 
each vote may be cast by proxy at all meetings of the stockholders. 
The proxy shall be in writing and tiled with the Secretary. 

4 * 











82 


ARTICLE IV. 

TRUSTEES. 

The Trustees elected at the first annual meeting of the stockholders 
shall serve for one year, and until their successors are elected. Their 
term of office shall commence immediately after their election. Va¬ 
cancies in the Board of Trustees shall be filled by the other Trustees 
in office within thirty days after such vacancy shall occur, and the 
person so elected shall hold office until the next annual election there¬ 
after. No person who is not at the time of the election an owner of 
stock in the company, standing in his own name on its books, shall 
be eligible to election as a member of the Board of Trustees. 

The Trustees shall present a full statement at the annual meeting 
of the stockholders showing in full and in detail the assets and liabil¬ 
ities of the company, and the general condition of its affairs. They 
shall call a meeting of the stockholders, and present at the meeting a 
similar report whenever so requested in writing by stockholders rep¬ 
resenting.of the whole number of shares. 

The Board of Trustees shall have power to call meetings of the 
stockholders whenever they deem it necessary. To appoint and 
remove at pleasure all officers, agents, and employes of the company, 
and to prescribe their duties, fix their compensation, and require 
security for faithful service. To make rules and regulations not 
inconsistent with the laws of the State of California, or the By-Laws 
of the company. To declare dividends out of the surplus profits of 
the company whenever they may deem it advisable. To levy such 
assessments as in their opinion may, from time to time, be necessary 
for the purposes of the company; provided , that no assessments shall 

be levied exceeding.dollars per shax-e in any one month. 

To make all contracts which in their judgment will subserve the 
interests of the company; and the signatures of the President and 
Secretary to any contract or obligation, when authorized by a vote of 
a majority of the Trustees, shall be valid and binding upon the com¬ 
pany. To incur such indebtedness as they may deem necessary; 

provided, however, that no debt exceeding.dollars shall 

be contracted on behalf of the company, except with the express 
stipulation that the stockholders shall not be held liable in their indi¬ 
vidual capacity; and provided further, that the debts of the com¬ 
pany shall not at any time exceed in the aggregate the sum of. 

.dollars. 

It shall be the duty of the Trustees to cause to be kept a complete 
record of all their official acts, and full minutes of the proceedings of 
all meetings of the Board and of the stockholders. To require the 
Secretary and Treasurer to keep their books and accounts in a proper 







83 


manner. To cause to be issued to the stockholders, in proportion to 
their respective interests, certificates of stock; provided that the 
aggregate amount of the certificates so issued shall not exceed the 
capital stock of the company. 

At the first meeting of the Board of Trustees they shall select one 
of their number to act as President, and elect a Secretary and 
Treasurer. 

ARTICLE V. 

PllESIDENT. 

The President shall preside at all meetings of the Trustees and of 
the stockholders. He shall sign as President all certificates of stock, 
and all contracts and other instruments of writing which have been 
first approved by the Board of Trustees, and affix the corporate seal 
to all instruments requiring a seal. He shall draw all warrants on 
the Treasurer. He shall have the casting vote at all meetings of the 
stockholders or Trustees. He may call a meeting of the Trustees or 
stockholders whenever he shall deem it necessary, and shall have, 
subject to the advice of the Trustees, direction of the affairs of the 
company. In case of his absence or inability, from any cause, to 
discharge the duties of the office, the vacancy may be filled by the 
remaining members of the Board, permanently or temporarily, as 
the circumstances may require, and the person so elected shall be 
vested with all the powers of the office. 

ARTICLE YI. 

TREASURER. 

The Treasurer shall safely keep all moneys and bullion belonging 
to the company, and disburse the same under the direction of the 
Board of Trustees and in conformity with the By-Laws of the com¬ 
pany. At each annual meeting of the stockholders, and as often as 
may be required by the Board of Trustees, he shall present a full 
statement of his accounts, with proper vouchers. He shall make no 
payment except on a warrant drawn by the President, and counter¬ 
signed by the Secretary. He shall discharge such other duties as 
pertain to his office, and as may be prescribed by the Board of 
Trustees. 

ARTICLE VII. 

SECRETARY. 

The Secretary shall keep a full record of the proceedings of the 
Trustees and of the stockholders. He shall keep the book of blank 
certificates of stock, fill up and countersign all certificates issued, and 
make the proper entries in the margin of such book on the issuance 
of certificates. He shall cancel all certificates surrendered to him 


84 


before issuing new certificates in lieu thereof, and shall preserve the 
certificates so surrendered and canceled as vouchers. He shall keep 
a transfer book, and a stock ledger in debit and credit form showing 
the number of shares issued to and transferred by any stockholder, 
and the dates of such issuance and transfer. lie shall countersign 
all warrants drawn on the Treasurer, keep proper account books, and 
perform such other duties as pertain to his office, and as are prescribed 
by the Board of Trustees. 

The books of the Secretary, and such papers as may be placed on 
file by vote of the Trustees or stockholders, shall at all times during 
business hours be subject to the inspection of any stockholder. 

ARTICLE VIII. 

SUPERINTENDENT. 

A general Superintendent shall be elected by the Board of Trus¬ 
tees, and be removable at their pleasure. It shall be the duty of such 
Superintendent to reside at the mine of the company, and take charge 
of all property there belonging to the company, and control and 
direct all labor and business pertaining to the interests, object, and 

operation of the company in., subject, however, as 

far as practicable, to the advice of the Trustees residing there, and 
entirely subject to the direction and control of the Board of Trustees. 
He shall make monthly returns to the Board of Trustees of all per¬ 
sons employed by the company, their wages and time employed, and 
shall present therewith a statement of all expenditures made by him, 
and his vouchers therefor, (duplicates of which shall be kept by him) 
and he shall also report the general condition of the mining work ; 
should he require funds, he shall make a requsition on the Board of 
Trustees therefor, stating the precise objects for which they are re¬ 
quired. If approved by the Board of Trustees, the money shall be 
transmitted to him in such mode as they may direct, or he may pro¬ 
vide funds by the sale of ore or bullion if so authorized by the Board 
of Trustees. 

ARTICLE IX. 

CERTIFICATES OF STOCK. 

Certificates of stock shall be of such form and device as the Board 
of Trustees may direct. Each certificate shall be signed by the Pres¬ 
ident and countersigned by the Secretary, and bear the seal of the 
company, and express on its face its number, date of issuance, the 
number of shares for which, and the person to whom it is issued. 
Several certificates may be issued to the same person, provided that 
in the aggregate they do not exceed the number of shares belonging 
to such person. The certificate book shall contain a margin in which 
shall be entered the date, number of shares, and name of the person 



85 


expressed in the corresponding certificate. No certificates of stock 
shall be delivered by the Secretary until the person entitled thereto 
shall have signed the By-Laws of the company. 

ARTICLE X. 

TRANSFER OF SHARES. 

Shares in the company may be transferred at any time by the 
holder thereof, or by attorney legally constituted, or by their legal 
representatives, but no transfer shall be valid except as between the 
parties thereto, until the surrender of the certificate and acknowledg¬ 
ment of such transfer on the books of the company. 

No transfer of any share shall be valid upon which any assessments 
are then due and unpaid, or if the holder thereof is indebted to the 
company on any account whatever, until such account or debt is paid, 
or arranged to the satisfaction of the Board of Trustees. 

ARTICLE XI. 

COMPENSATION. 

Neither the President, Treasurer, nor any member of the Board of 
Trustees, as such, shall receive compensation for their services. 
Reasonable traveling expenses shall be allowed by the Trustees to 
the President, or other member of the Board, engaged, by authority 
' of the Board of Trustees, in the business of the company. 

The Superintendent and Secretary shall respectively receive such 
compensation for their services as the Board of Trustees may from 
time to time determine. 


ARTICLE XII. 

VALIDITY OF CONTRACTS. 

No contract by any officer of the company, other than for work 
and labor done and materials furnished, shall be valid without the 
previous approval or subsequent ratification by the Board of Trustees. 

ARTICLE XIII. 

AMENDMENTS. 

These By-Laws may be altered or amended at any meeting of 
the stockholders by a vote of two-thirds of all the shares in the com¬ 
pany ; or they may be altered or amended at any meeting of which 
notice has been given by publication, once a week for four weeks, in 

some daily newspaper published in.by a majority vote of 

all the shares. 



POWER OE ATTORNEY 


TO RECEIVE CERTIFICATES OF STOCK. 


Know all men by these presents that I,., do hereby 

make, constitute, and appoint.my true and lawful at¬ 

torney, for me and in my name, place, and stead, to receive certificates 
for.shares of the capital stock of the.Mining Com¬ 
pany, to he issued in the name of., and to sign and 

execute all necessary papers to that end ; hereby ratifying all law¬ 
ful acts of my said attorney done by virtue hereof. 

Witness my hand and seal, at., this_day of., 

a. d. 186 . 

Witness: [l.s.] 


POWER OF ATTORNEY 

TO VOTE AT A MEETING OF STOCKHOLDERS. 


Know all men by these presents that I,., do hereby 

make, constitute, and appoint.my true and lawful at¬ 

torney, for me and in my name, place, and stead, to vote as my 

proxy at.meeting of the Stockholders of the.Mining 

Company.according to the number of votes to which I 

should be entitled if personally present; with full power of substi¬ 
tution and revocation. 

Witness my hand and seal, at., this_day of., 

a. D. 186 . 

Witness: [l.s.] 

[If this proxy is used at an election of officers a ten cent Revenue 
Stamp must be affixed.] 



















INDEX TO STATUTES 


[the numbers refer to sectional paragraphs.] 


Actions against stockholders. 1G 

evidence in. 16, 18, 28 

Alphabetical list of stockholders shall be kept. 18, 28 

what shall be shown thereby. 18, 28 

shall be kept open for inspection. 18, 28 

stockholders or creditors may make extracts there¬ 
from. 18, 28 

such book or certified copy therefrom shall be evi¬ 
dence in actions. 18, 28 

penalty for neglect to keep, in a proper manner.. 19, 29 

Assessments. Notice of, how shall be given. 10,30 

Under Act of March 5th, 1861. Sales of stock for de¬ 
fault in payment of. 10 

to what amount may be levied. 30 

notice of, how shall be given. 30 

sales of stock for non-payment of. 30 

By-Laws. Power of corporations to make. 3 

to provide for filling vacancies in Board of Trustees 5 

shall be entered at length in a book. 28 

Canal Companies. For what purposes may be formed.. 31 

rights granted to. 32 

power of. 33 

shall construct and repair bridges. 34 

Capital Stock. Shall be stated in certificate. 2 

shall not be reduced except as prescribed. 13 

distribution of, upon dissolution. 13 

debts not to exceed amount of, paid in. 14 

may be increased or diminished. 20 

before diminished excess of debts to be satisfied .... 21 

manner of increasing or diminishing. 21 

Certificate of Incorporation. Number of persons to 

sign. 2 

what shall be stated therein. 2 

certified copy of, to be filed. 2 

certified copy of, shall be received in evidence. 3 
































88 

Certificate of Proceedings shall be filed when capi¬ 


tal is increased, etc. 22 

how, shall be made. 22 

what shall be shown thereby. 22 

on petition for dissolution. 24 

what shall be stated therein. 24 

Certified Copt of certificate of incorporation shall be filed 2 

shall be received in evidence. 3 

of list of stockholders, etc., may be demanded... 18, 28 

shall be evidence of facts stated. 18, 28 

Conveyances of Mining Claims (Act of April 13th, 

1860). What may be evidenced by. 39 

need not be under seal. 39 

must be accompanied by delivery of possession. 39 

or must be acknowledged and recorded. 39 

limitation of act to gold mining claims repealed .... 40 

Corporations (under Act of April 14th, 1853). For what 

purposes may be formed. 1 

liabilities of. 1, 27 

powers of. 4, 15 

debts of, shall not exceed paid-in capital. 14 

penalty of, for neglect to keep list of stockholders 19, 29 

settlement of affairs on dissolution of. 23 

mariner of dissolution of. 24 

Creditors. When trustees are individually liable to. 14 

may inspect list of stockholders. 18 

Debts. Trustees individually liable for excess of. 14 

shall be satisfied before capital is reduced. 20 

to be settled by trustees after dissolution. 23 

Dissolution of Corporation. 23, 24 

Dividends shall not be made except from surplus profits . 13 

Election of Trustees. Manner of conducting. 5 

Evidences of Debt shall not be issued to circulate as 

money. 15 

Executor, Administrator, etc., may represent stock. 11 

liability of. 17 

Growing Crops, etc., (Act of April 25th, 1855). Owners 

of, protected. 36 

penalty for violation of act concerning. 38 

Improvements. Meaning of word, as construed by Act 

of April 25th, 1855 . 37 

Land. Quantity of, authorized to be held. 1 

Liabilities (under Act of April 14th, 1853) of corpora¬ 
tions . 1, 27 

of trustees. 13, 14 

of stockholders. 16 

of person pledging stock. 17 

of executor, administrator, etc. 17 

Mineral Land. Agricultural corporations not allowed to 

hold. 1 

occupied by growing crops, etc., how may be used.. 37 

may be worked after crops are harvested. 38 



«w» 


co 

4 

i 

i 


c 


c «' » 








































89 


Notice of first meeting of trustees. 8 

of assessments (Act of April 14th, 1853). 10 

of meeting to increase or diminish capital. 21 

of petition for dissolution. 24 

of assessments (Act of March 5th, 1861). 30 

Powers of Corporations. 4, 15 

who shall be exercised by. 5 

Representation of Stock held by executor, etc. 11 

when pledged. 12 

Resolutions and Orders. How, shall be entered. 28 

Sale of Stock for non-payment of assessments. 10, 30 

Secretary. Penalty for neglect, etc. 19, 29 

to make affidavit to proceedings. 22 

Stock shall be deemed personal estate. 9 

how, shall be transferred. 9 

transfer of, not valid until entered on the books. 9 

sale of, for non-payment of assessments. 10, 30 

how, shall be sold. 10, 30 

how, may be pledged. 12 

held by executor, administrator, etc. 11 

person pledging, shall be considered owner. 17 

Stockholders. Liability of. 16 

actions may be instituted against. 16 

property to be divided among, after dissolution. 23 

alphabetical list of, shall be kept. 18, 28 

evidence for and against, in actions. 16, 18, 28 

meeting of, to increase or disminish capital. 21 

Transfer of Stock. 9 

Trustees. Vote necessary to remove. 4 

vote necessary to elect. 5 

number composing board of. 5 

qualifications necessary. 5 

when, shall be elected. 5 

vacancy in board of, how filled. 5 

failure to elect, on day designated. 6 

acts of, valid until successors elected. 6 

majority of, shall form a board. 7 

decision of majority of, assembled valid. 7 

how first meeting of, shall be called. 8 

powers of, relative to assessments. 10 

shall not make dividends except as provided. 13 

shall not withdraw or divide capital stock.. . 13 

when, are individually liable. 13, 14 

cause dissent, etc., to be entered on the minutes.. 13, 14 

shall cause list of stockholders to be kept.. 18, 28 

shall sign notice of meeting to increase or diminish 

capital stock. 21 

shall certify proceedings of such meeting. 22 

power of, upon dissolution of corporation. 23 

Votes. Number of, to which stockholders are entitled ... 5 

number of, necessary to elect trustees. 5 

number of, necessary to increase the capital. 21 

number of, necessary to dissolve corporation. 24 






















































INDEX TO DECISIONS 


[the figures refer to the sectional paragraphs.] 


By-Laws. For what purposes, may be made. 76 

violation of provisions of, by Trustees.... 114, 115, 119 
Certificate of Incorporation. Corporations have a 

legal existence from date of filing. 44 

filing of duplicate, with Secretary of State. 45 

statement in, of “place of business.”. 46 

Convey - ance of Mining Claims. As to necessity of seal 

upon. 287, 288, 289, 290 

not necessary to be by instrument in writing... 289, 290, 

292, 293 

to a corporation. 278 

Corporation must show a compliance with the statute... 41 

omission of necessary steps will be fatal. 42 

as to other acts, responsible only to the Government. 43 
lias a legal existence from date of filing certificate.. 44 

first established has no exclusive privileges. 65 

when bound to pay debts of old corporation. 66 

authority of President to bind. 67 

acts of, may amount to a ratification of a contract... 67 

may bind itself by note and mortgage. 68 

power of, to sell shares for non-payment of assess¬ 
ments . 69 

conveyance made by. 70, 71 

seal of.. 74 

when bound by acts or admissions of its members... 78 

cannot hold as joint tenant. 85 


in reference to contracts, treated as a private person. .87, 


88, 99 


where a power is conferred upon, and mode of its 


exercise prescribed. . 90, 91 

dissolution of. 106, 107, 108, 116 

may be sued by a member. 109 

law governing members of. 110 

power of removing officers of.. 112, 113 

liability of officers of.. 117, 119 

























Corporation. Jurisdiction over, by a Court of Equity.. 118 

liability of members of.120, 121, 122 

power of, to sue.. 125 

duty of, as to answer in suit. 126 

conveyance to, by owners of mining ground.278 

Actions against, on note. 64 

on an implied contract for services as Secretary. 97 

where decree directed sale of interests of individuals 

not parties to suit. 100 

to restrain the issuing of bonds. 101 

where one defendant pleads that he is not a member 

of the company. 102 

who are required to be made parties in. 101, 103 

who shall be served with summons in. 104, 127, 128 

Sheriff's return on summons in. 104, 105 

by a member of the corporation. 109 

by a stockholder, for a settlement of its affairs. Ill, 114 

competency of witnesses in. 52, 96, 122, 123, 124 

Actions by, for possession of land necessary. 73 

admission in evidence of certificates of stock. 179 

Liability of, to pay debts of an old corporation. 66 

on contracts made by President, etc. 67, 83 

on note and mortgage. 68 

on promissory note which provides that property of 

stockholders shall not be liable. 77 

a corporate act not essential in all cases. 79 

where contract has been executed. 80 

for payment of debts contracted by agent. 82 

Powers of, to issue bills and notes. 62, 64, 72, 76 

who may be exercised by. 63 

to sell shares for non-payment of assessments. 69 

to make contracts and create debts.74, 75 

to make By-Laws. 76 

what power may be exercised. 84, 86 

to sue. 125 

Dam may be reduced or abated to prevent overflow. 221 

action for raising, when premature. 227 

action for damages caused by breaking of, etc.228 

the law will not presume an abandonment of. 229 

Ditcii or Canal. Competency of witness in action for 

diversion of water from. 206 

when owners are responsible for injuries caused by 

breaking of.224, 225 

law will not presume an abandonment of property in 229 
use of water of stream for, while in process of con¬ 
struction. 233 

where two parties claim in part water of the same 

stream for. 234 

care necessary to be used by owners of, to prevent in¬ 
jury. 235 

failure of one partner to pay his proportion of ex¬ 
penses. 236 

notice of intention to dig. 237 










































93 


Dividend. When, declared after conditional transfer. ... 61 

Draft. Where no notice of presentation and non-payment 


of, is necessary... 81 

Location of quartz ledge, rights of locator. 246, 247 

of same ground for different purposes... 255, 256 

misdescription in notice of. 257 

quantity claimed by, may be limited by mining rules 262 

quantity taken by, must be reasonable. 281, 282 

of quartz lead by one person for another.. 283, 284, 285 

Mining Claims must taken subject to prior rights. 145 

defined. 151 

title and possession of.. 164, 165, 166, 167 180, 182, 211, 
244, 265, 266, 267, 268, 269, 274, 275, 279, 280, 291 

must be defined as to limits. 165 

damages for entry upon. 168 

grant of, presumed to first appropriator. 160, 171 

location of... 180, 189, 257 


competency of witnesses in action for recovery of 150, 184 
when writ of injunction will lie to restrain trespass in 


entering on. 185, 186 

abandonment of. 183, 208, 209, 214 

jurisdiction of.. 187, 188, 190, 191 

hill of sale of, how may be proven. 196 

unlawful entry of Sheriff upon. 195 

what are fixtures on. 197 


competency of witnesses in action of trespass for 

entering upon. 198 

liability of purchaser of, on contracts previously made 201 
evidence in justification of killing another while in 

the act of injuring a. 202 

boundary line of... 203, 204, 251 

taking possession of, under an agreement. 205 

title acquired by purchaser of..207 

title to, when subsequently acquired by vendor. 194 

parties defendant in action for the recovery of an in¬ 
terest in. 210 


interest in, is property and liable to be sold under ex¬ 
ecution.... 212, 222, 300 

tailings from 213, 214, 215, 216, 217, 230, 239, 240, 241 

right to, acquired at date of location. 224 

right of owner of, on stream as to use of channel and 

water. 230, 231, 232 

question as to necessity of recording, reserved.242 

admission in evidence of notice posted on. 243 

when work done outside of, may be considered as work 

done on... 253, 254, 266, 268 

record of, may be admitted in evidence. 258 

local rules concerning the acquiring and extent of.. 260, 

261, 262, 263, 271 


taking possession of, without reference to mining rules 264 

power of miners to prescribe rules governing. 273 

conveyance and transfer of 287, 288, 289, 290, 292, 293 


































/ 


94 


Mining Claims. Failure to record. 272 

what constitutes evidence of possession of. 270 

written conveyance not necessary to transfer of. 289, 

290, 292, 293 

taxation of. 300, 301 

Mining Company. Liability of members of. 192, 193 

Mining Laws, etc. When introduced in evidence to be 

construed by the Court. 252 

as to failure to comply with. 259 

as to working of claims. 254, 259 

as to the acquiring and extent of claims.. 260, 261, 262, 

263 

as to admission of, in evidence. 261, 276 

may limit the quantity of ground that may be located 262 
cannot limit the quantity that may be purchased.... 263 

power of miners to prescribe. 273 

passage of, by miners. 286 

Notice posted on mining claim, admission of, in evidence. 243 

of location, misdescription in. 257 

Private Lands. Miner has no right to enter upon. 162, 170, 

172 

when injunction will lie to prevent damage to.. 199, 200 
Public Lands. (Agricultural and mineral.) Mines upon, 

may be worked.129, 142, 144 

rights of agriculturist to, must yield to the rights of 

the miner.129, 130, 143 

right of miner to dig ditch through. 131 

right of entry upon, for purpose of mining.... 132, 133, 
134, 135, 136, 137, 138, 139, 140, 158, 163, 174 

preemption claimant upon. 141 

settlers may occupy, except in mining regions. 146 

right of ownership to, not asserted by Government.. 148 

transfer of right of possession of.. 152 

claims to, regarded as titles. 153 

license to work mines upon. 154, 155, 162 

location of seminary land. 157 

location of school land warrants. 173 

title and possession of. 163, 164, 176, 274, 275 

how miner may justify entry upon. 175 

right of property in the mines on. 218, 219 

the State can levy a poll tax upon all persons engag¬ 
ed in mining upon. 294 

foreign miners liable to license tax for working upon 295, 

296, 297, 298, 299 

Quartz Ledge. What the locator of, is entitled to. 246, 247, 


248 

when located in name of another. 283, 284, 285 

Uigiits of Miners to dig ditch through public lands.... 131 
to enter upon mineral lands. 132, 133, 134, 135, 136, 137, 

138, 139, 140 

to dig for gold on public lands.. 129, 130, 143, 144, 145, 

147, 149, 156, 158 





























95 


Rights of Miners to mine carries with it other rights 158, 159 

to remove gold restricted to public lands. 161, 162 

to pay dirt and tailings. 213 

to appropriate place for deposit of tailings. 215 

to protect mining ground from injury by obstruction 

of water. 222 

to be protected in their possession. 223 

to the use of channel of stream and water. 230, 231, 232 
Stock. When attached under judgment against vendor.. 49 

purchaser of hypothecated, at Sheriff’s sale. 59 

when pledged as security. 58 

sale of, for non-payment of assessments. 69 

may be voted at election by surviving partner.... 92, 93 

may be represented at meetings by true owner_ 94, 95 

Assignment and transfer of must be made on the books 

of the company. 47, 57 

when held by a married woman. 48 

when attached under judgment against the vendor... 49 

refusal of company to transfer on ground of indebted¬ 
ness of vendor. 50 

as security for a loan.,. 51 

as security for a note. 53, 58 

as security for a debt. 54 

conditional clause in transfer. 55 

mere default of payment of debt does not give abso¬ 
lute title. 56 

dividend declared after. 61 

Stockholder. Competency of, as a witness. 52, 96, 122, 

123, 124 

may sue corporation. 109 

mav sue corporation for an account. 119 

liability of. 120, 121, 122 

Surviving Partner has a right to vote stock at an elec¬ 
tion. 92 

may vote stock standing in name of deceased partner 93 

Tailings arc the property of the miner. 213 

evidence of abandonment of. 214 

miner may appropriate ground for place of deposit of 215 
evidence of intention to appropriate ground for place 

of deposit of.. 215 

when allowed to mingle with those of other miners.. 216 
when allowed to flow upon the ground of another... 217, 

230, 239, 240, 241 

Taxation. Poll tax may be levied upon all persons en¬ 
gaged in mining. 294 

of foreign miners. 295, 296, 297 

employer liable for payment of foreign miner’s license 298, 

299 

of mining claims. 300, 301 

that a foreigner has no license is no apology for tres¬ 
passers. 302 

Trustees. Liability of.. 115,117, 119 
































96 



Usage, Custom, etc., of a corporation as to compensation 

of Secretary. 97, 98 

when an answer is insufficient in not setting forth... 220 

in given locality as to possession. 244 

as topermission to the miner to search for the precious 


metals. 245 

as to the right of first locator of quartz ledges. 249 

as to proof of, in other districts. 250 

as to location. 251, 281, 282 

as to working of claim. 254, 259 

Water. Obstruction of, in a ravine. 222 

first appropriator of, for mining purposes. 226 

right of miner on stream to the use of. 231 

right to the use of, for a ditch and flume in process 

of construction. 233 

what constitutes title to. 238 


Water Privileges, etc. Grant of, presumed to the first 

appropriator. 160, 17! 


t 




































































